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ABSENT AMBIGUITY A COURT CAN NOT CONSIDER EXTRINSIC EVIDENCE TO INTERPRET A CONTRACT; HERE PLAINTIFF HAD BROUGHT TWO ACTIONS AGAINST THE CITY CHALLENGING TWO SEPARATE ARRESTS; THERE WAS NO INDICATION THE RELEASE ONLY APPLIED TO THE ACTION DESCRIBED IN THE CAPTION OF THE RELEASE; THE SPACE FOR DESCRIBING ANY ACTION TO BE EXCLUDED FROM THE RELEASE WAS LEFT BLANK; THEREFORE THE RELEASE APPLIED TO BOTH ACTIONS; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined the release signed by plaintiff applied to both actions plaintiff had brought against the city, not just the action identified in the caption of the release. Plaintiff brought two separate actions challenging two arrests occurring 14 days apart. The release identified the action stemming from the second arrest and left a blank space to describe anything to be excluded from the release. That space was left blank. Supreme Court and the dissent determined that the plaintiff intended to exclude the first action from the release but plaintiff’s attorney inadvertently left the space for the exclusion blank:

Like any contract, a release must be “read as a whole to determine its purpose and intent,” and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous … . “A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” … . “More to the point, an ambiguity never arises out of what is not written at all, but only out of what was written so blindly and imperfectly that its meaning is doubtful” … .

Here, there was nothing surreptitious about the City sensibly filling in plaintiff’s name as the releasor, the case name and the index number referrable to Action 2, in the general release to identify the specific matter being settled. What followed are standard, boiler-plate operative terms of this general release, namely, a broadly worded waiver provision and a claim exclusion clause, both of which are clear and unambiguous. Thus, there was no legal basis for the motion court to use any extrinsic evidence, discern an unfounded ambiguity therefrom and ultimately surmise the parties’ intent to limit the scope of the general release to Action 2 … . Smith v City of New York, 2025 NY Slip Op 01198, First Dept 3-4-25

Practice Point: Here Supreme Court considered extrinsic evidence indicating that the release was meant to apply to only one of two actions plaintiff brought against the city. The First Department held that, because the release was not ambiguous, the court cannot consider extrinsic evidence. Therefore the release, by its terms, applied to both actions.

 

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DEFENSE COUNSEL’S FAILURE TO REQUEST THAT THE JURY BE INSTRUCTED ON THE HEIGHTENED DEFINITION OF IMPAIRMENT DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; AT THE TIME OF THE TRIAL THERE WAS NO APPELLATE AUTHORITY FOR THE APPLICATION OF THE HEIGHTENED DEFINITION OF IMPAIRMENT IN ANY CONTEXT OTHER THAN VEHICULAR MANSLAUGHTER (THIRD DEPT).

The Third Department, affirming defendant’s conviction, over a dissent, determined that the heightened definition of “impaired” which has been applied to a vehicular manslaughter charge need not be applied to driving while ability impaired by drugs or a combination thereof, the charges against defendant here. Therefore the failure to request that the jury be instructed to apply the heightened definition of impaired did not constitute ineffective assistance of counsel:

At the time of defendant’s trial, there was no appellate authority which warranted a jury instruction concerning the heightened intoxication standard relative to the crimes that were pending against defendant. In Caden N. [189 AD3d 84], this Court, by its own express language, limited its holding to the crime of vehicular manslaughter, which of course is not present here. That is, this Court was careful to state that it was defining impairment “in the context of assessing whether a person has committed the crime of vehicular manslaughter in the second degree” (People v Caden N., 189 AD3d at 90). In the event that this Court had also wished to apply the new definition of impairment to the underlying crimes of driving while ability impaired by drugs or by a combination thereof, it surely would have explicitly stated as much. * * *

In the absence of any such authority, defense counsel properly acquiesced to the jury being charged in accordance with the definition of impairment that was provided in the Criminal Jury Instructions as of that time. Thus, under these circumstances, it cannot be said that any reasonable defense counsel would have requested the intoxication instruction in place of the impairment instruction, and counsel was not ineffective for failing to do so. People v Ambrosio, 2025 NY Slip Op 01133, Third Dept 2-27-25

Practice Point: The Third Department has applied a heightened definition of impairment for vehicular manslaughter cases. The Fourth Department refused to follow suit. The law in this area is in flux.

 

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WHETHER DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY OFFENDER DEPENDS ON THE UNDERLYING FACTS FOR THE PREDICATE FEDERAL OFFENSE WHICH ARE NOT ON THE RECORD; MATTER REMITTED FOR THAT DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter, determined that whether the federal offense used as a predicate for defendant’s second felony offender designation is the equivalent of a New York felony depends on the underlying facts of the federal offense:

… [T]he federal statute under which defendant was previously convicted provides, in relevant part, that “it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” (21 USC § 841 [a] [1]). As defendant points out, the federal statute contains elements not found in certain New York statutes, e.g., manufacturing, and encompasses a mix of felony and misdemeanor offenses … . Hence, resort to the facts underlying defendant’s federal conviction is warranted in order to ascertain whether defendant’s convictions are equivalent to a felony in this state … . However, because defendant did not controvert his status as a second felony offender, the People have not sought to admit an “accusatory instrument that describe[s] the particular act or acts underlying the charge [for purposes of] isolat[ing] and identify[ing] the statutory crime[s] of which . . . defendant was accused” for purposes of “determining whether Penal Law § 70.06 [1] [b] [i] has been satisfied” … . Accordingly, we remit this matter for a hearing on defendant’s CPL 440.20 motion to give the People the opportunity to establish, and defendant the opportunity to protest, the issue of equivalency, which is a determination we cannot make on the current record. People v Darby, 2025 NY Slip Op 01134, Third Dept 2-27-25

Practice Point: When a federal conviction is used as a predicate offense for a second felony offender designation, the federal offense must be equivalent to a New York felony. Here the federal offense included elements not included in the relevant New York felony. In that situation, it is necessary to look at the underlying facts for the federal conviction to determine equivalency.

 

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DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE THE DEFECT WHICH CAUSED PLAINTIFF’S FOOT TO SINK INTO SOFT ASPHALT WAS TRIVIAL OR OPEN AND OBVIOUS AS A MATTER OF LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the defect which allegedly caused plaintiff’s foot to sink down about an inch into soft temporary asphalt was trivial or open and obvious as a matter of law:

Although defendants stress that the alleged defect was, at most by plaintiff’s own admission, only an inch in height, even physically small defects can be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . When considering the attendant circumstances, including that the defect formed itself only as plaintiff stepped down on it, the location of the alleged defect in front of plaintiff’s driveway and that defendants acknowledged temporary asphalt could depress or settle but had no record or knowledge if they performed any inspection in the area where plaintiff fell, we cannot say “as a matter of law that the condition was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … . Nor can we say that the defect, which may have formed due to voids under the surface of the temporary asphalt and was not physically observable until after plaintiff stepped down on it, “did not constitute a trap for the unwary” … . To this point, the fact that the backfilled trench had a sharply contrasted hue as opposed to the rest of the roadway surface or the mouth of plaintiff’s driveway simply does not translate to an open and obvious condition because of the nature of the defect, which only formed after it had been stepped on, and therefore defendants’ reliance on these facts as an aegis is misplaced. Santiago v National Grid USA Serv. Co., Inc., 2025 NY Slip Op 01139, Third Dept 2-27-25

Practice Point: The defendant seeking summary judgment in a slip and fall case bears the burden of demonstrating the defect which allegedly caused plaintiff to fall was trivial or open and obvious. Here defendants did not submit sufficient evidence to eliminate questions of fact for either theory.

 

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THE ALLEGATION A PLASTIC SURGEON POSTED BEFORE AND AFTER PHOTOGRAPHS OF PLAINTIFF WITHOUT PERMISSION STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Egan, determined plaintiff stated causes of action for both a violation of privacy pursuant to the Civil Rights Law, and breach of a fiduciary duty. Plaintiff alleged defendant plastic surgeon posted before and after photographs of the plaintiff without her consent. The breach of a fiduciary duty claim did not duplicate the violation of privacy claim. Physicians have a fiduciary duty not to disclose a patient’s medical records without authorization:

Plaintiff instead alleges that defendants all had a physician-patient relationship with her and that they breached a distinct duty arising out of that relationship by publicly disclosing photographs of her that had been taken in the course of treatment without her agreement … . “It is well established that a patient may maintain a cause of action for breach of fiduciary duty against his or her physician resulting from the physician’s unauthorized disclosure of the patient’s medical records,” broadly defined as essentially any information acquired by the physician that relates to the patient’s diagnosis or treatment, as such disclosure violates “the implied covenant of trust and confidence that is inherent in the physician patient relationship” … . A claim for breach of fiduciary duty, based as it is upon the well-established duty a physician owes to his or her patient as opposed to a purported right of privacy, may be viable where claims based upon a generalized invasion of privacy are not … . Perry v Rockmore, 2025 NY Slip Op 01141, Third Dept 2-27-25

Practice Point: Here the allegation defendant plastic surgeon posted before and after photographs of plaintiff stated distinct causes of action for a violation of privacy pursuant to the Civil Rights Law, and breach of fiduciary duty (unauthorized disclosure of medical records).

 

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF A PROTRUDING NAIL IN A BASEMENT STAIRWAY WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE STAIRWAY WAS LAST CLEANED OR INSPECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate a lack of constructive notice of a protruding nail in a basement stairway which allegedly caused plaintiff to slip and fall. The defendant did not present any evidence demonstrating when the stairway was last inspected or cleaned:

… [T]he defendants failed to establish, prima facie, that 234-236 Elmendorf Street, LLC [the property owner], lacked constructive notice of the protruding nail condition alleged by the plaintiff … . Although the defendants submitted a transcript of the plaintiff’s deposition testimony wherein she averred that she did not notice the protruding nail when she last used the staircase approximately one week prior to her accident, the defendants did not establish that the condition did not exist for a sufficient length of time prior to the alleged accident in order for it to be remedied … . Moreover, the defendants failed to submit sufficient evidence as to when 234-236 Elmendorf Street, LLC, had last cleaned or inspected the staircase at issue … . Jones v 234-236 Elmendorf St., LLC, 2025 NY Slip Op 01083, Second Dept 2-27-25

Practice Point: Here the plaintiff’s deposition testimony that she did not notice the protruding nail the week before her fall was not sufficient to demonstrate defendant property owner did not have constructive knowledge of the protruding nail. No evidence of when the stairway was last cleaned or inspected was presented.

 

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THE FAILURE TO INCLUDE THE PHONE NUMBER FOR THE NYS DEPARTMENT OF FINANCIAL SERVICES IN THE RPAPL 1304 NOTICE OF FORECLOSURE RENDERED THE NOTICE FACIALLY DEFECTIVE; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s cross-motion for summary judgment in this foreclosure action should have been granted. The bank did not demonstrate strict compliance with the notice-of-foreclosure requirements of RPAPL 1304. The notice did not include the phone number for the NYS Department of Financial Services’ toll-free helpline:

“Where an RPAPL 1304 notice fails to reflect information mandated by the statute, . . . the statute will not have been strictly complied with and the notice will not be valid” … . Here, at the time the RPAPL 1304 notices were purportedly sent to the defendant, the version of RPAPL 1304 in effect required the notice to include the following sentence: “If you need further information, please call the New York State Department of Financial Services’ toll-free helpline at (show number) or visit the Department’s website at (show web address)” … .

Both RPAPL 1304 notices purportedly sent to the defendant included the sentence: “If you need further information, please call the toll-free helpline at or visit the Department’s website at .” Since the notices failed to include the telephone number for the Department of Financial Services’ toll-free helpline—a piece of information specifically required by the version of RPAPL 1304 in effect at the time the notices were sent—the notices were facially defective, and the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her should have been granted … . Federal Natl. Mtge. Assn. v Williams-Jones, 2025 NY Slip Op 01081, Second Dept 2-26-25

Practice Point: Strict compliance with the mandated contents of a RPAPL 1304 notice of foreclosure is required. Here the failure to include the phone number for the NYS Department of Financial Services rendered the notice facially defective and warranted a grant of summary judgment to the defendant.

 

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HERE THE MOTION TO RENEW, BASED UPON A CHANGE IN OR CLARIFICATION OF THE LAW, SHOULD HAVE BEEN GRANTED DESPITE THE APPELLATE RULING ON THE PRIOR ORDER (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant landlord’s motion to renew based upon a change in the law should have been granted}

On appeal, this Court agreed with defendant that the law as it existed prior to enactment of the Housing Stability and Tenant Protection Act of 2019 (HSTPA) applies in this case. However, we found that plaintiffs had raised a triable issue of fact as to whether the landlord engaged in a fraudulent scheme [to deregulate apartments]. Accordingly, we affirmed denial of defendant’s summary judgment motion.

In April 2023, defendant moved in Supreme Court for renewal of its summary judgment motion. Defendant argued that Casey v Whitehouse Estates, Inc. (39 NY3d 1104 [2023]) supported its position on the summary judgment motion. The motion court denied the motion to renew and did not reach the substantive issue raised by defendant.

Contrary to plaintiffs’ contention, a court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, “even after an appellate court has rendered a decision” on the prior order … . Accordingly, defendant’s motion to renew its summary judgment motion should be granted. 435 Cent. Park W. Tenant Assn. v Park Front Apts., LLC, 2025 NY Slip Op 01157, First Dept 2-27-25

Practice Point: Even where the denial of summary judgment has been affirmed on appeal, a motion to renew based upon a change in or clarification of the law should be granted.​

 

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THE USE OF ICE PACKS WAS NOT PART OF THE DEFENDANT MANUFACTURER’S BURN-TREATMENT SYSTEM; THEREFORE THE DEFENDANT COULD NOT BE HELD LIABLE BY THE INJURED PLAINTIFF FOR THE FAILURE TO WARN AGAINST APPLYING ICE PACKS TO BARE SKIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Zeltiq, the manufacturer of a system for treating burns (CoolSculpting Systems), could not be held liable for injury allegedly caused by the application of ice packs after the CoolSculpting treatment. The complaint alleged a failure to warn of the the danger of using ice packs. The use of ice packs was not part of the CoolSculpting treatment:

Zeltiq also had no duty to warn plaintiffs of any risks associated with using ice packs after treatment with the CoolSculpting System. Because the CoolSculpting System is a FDA Class II medical device that requires a prescription, Zeltiq’s duty to warn runs to physicians, not directly to patients … . Thus, in this case, Zeltiq’s duty ran to Silverstein’s [plaintiff’s] treating physician, Dr. Brauer. However, there is no duty to warn of risks that are obvious, including risks that are well-known to physicians because of their medical training … . Dr. Brauer testified that through his education and training, he was aware of and knew of the dangers of placing ice on bare skin, and that those dangers were basic medical knowledge … . Plaintiffs’ expert does not dispute that these dangers are basic knowledge in the medical community and, in fact, opines that it is a deviation from the standard of care to place ice packs on bare skin.

In addition, given Dr. Brauer’s awareness of the risk, his status as a “responsible intermediary” breaks the chain of proximate cause between any failure to warn by Zeltiq and the harm to Silverstein … . Silverstein v Coolsculpting Zeltiq Aesthetics, Inc., 2025 NY Slip Op 01183, First Dept 2-27-25

Practice Point: Here the application of ice packs to bare skin was not part of the defendant manufacturer’s burn-treatment system. The use of the burn-treatment system is by prescription only, so the duty to warn owed by the manufacturer runs to the physician, not the patient. Here the dangers of applying ice packs to bare skin are well known to physicians, so the use of ice packs by plaintiff’s physician broke the chain of proximate cause re: the defendant manufacturer.

 

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THE APPEAL WAIVER WAS INVALID, CRITERIA EXPLAINED; THERE ARE UNRESOLVED QUESTIONS (RAISED BY A DEFENSE INVESTIGATION SUBMITTED WITH THE MOTION TO SUPPRESS) ABOUT WHETHER THE DESCRIPTON OF THE SEARCHED PREMISES IN THE WARRANT WAS ACCURATE, REQUIRING A HEARING; MATTER REMANDED (FIRST DEPT

The First Department, in a full-fledged opinion by Justice Higgitt, remanding the matter for a suppression hearing, and finding the appeal waiver invalid, determined there were questions about whether the search warrant described the premises to be searched with sufficient particularity. The warrant indicated there was only one apartment, with an unmarked tan door. The defendant’s investigator submitted evidence demonstrating there were two apartments, neither with a tan door, and the door to the searched apartment was marked with a number one, while the other apartment door was unmarked:

The plea colloquy contained several defects. It did not make clear, expressly or tacitly, that the right to appeal was separate and distinct from the Boykin rights defendant was automatically forfeiting with the plea; the colloquy suggested that the appeal waiver was absolute, offering no clue that some core appellate claims would survive; and, relatedly, the colloquy wrongly indicated that no appeal was permissible on the fundamental issues of whether the plea was entered into knowingly and voluntarily, and whether the sentence was legal.

The written waiver cannot save the oral appeal waiver. The plea court did not confirm that defendant had read the written waiver; the court did not confirm that defendant had discussed the written waiver with counsel; and the court did not confirm that defendant understood the written waiver … . * * *

… [D]efendant’s submissions in support of his omnibus motion call into question whether the search warrant contains a misdescription of the premises to be searched, and, if there is a misdescription, whether it renders the warrant invalid. Specifically, defendant’s omnibus motion submissions raise a question of fact as to whether, based on what the police officer knew or should have known about the premises when the search warrant was sought, the warrant’s description of the target premises was accurate … . [D]efendant here submitted evidence (in particular, the affirmation of the investigator who visited the premises and the photographs of 955 Bruckner Boulevard taken by the investigator) about the “actual conditions of the premises” in support of his omnibus motion … . Additionally, assuming there was a misdescription of the premises to be searched, a question of fact exists as to whether there was no reasonable possibility that the wrong premises would have been searched … .

We cannot resolve the issues raised by defendant’s omnibus motion submissions without a hearing (see CPL 710.60[4]; see also CPL 710.60[2] …). This is not a situation where it is plain from the existing record that there was no reasonable possibility that the wrong premises would be searched regardless of any misdescription … . People v Trulove, 2025 NY Slip Op 01178, First Dept 2-27-25

Practice Point: Consult this opinion for a detailed explanation of the criteria for a valid waiver of appeal.

Practice Point: Here the defense investigator submitted evidence which raised a question whether the search warrant accurately described the premises to be searched. The matter was remanded for a hearing.

 

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