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IF THE LADDER DOESN’T MOVE AND PLAINTIFF LOSES HIS BALANCE AND FALLS, THERE IS NO LIABILITY UNDER LABOR LAW 240(1); BUT IF THE LADDER MOVES FOR NO APPARENT REASON LIABILITY ATTACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. The court clearly explained when Labor Law 240(1) liability is triggered by a fall from a ladder. Even if the ladder moves for no apparent reason, liability attaches:

“To establish a violation under Labor Law § 240(1), ‘[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries'” … . “The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . “Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach” … . “By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation” … . Nunez v Trustees of Columbia Univ., 2026 NY Slip Op 05319, Second Dept 9-16-26

Practice Point: Consult this decision for a clear explanation of when Labor Liability 240(1) liability is triggered by a fall from a ladder.​

 

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THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216(A); THEREFORE THE JUDGE COULD NOT, SUA SPONTE, DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal did not serve as a 90-day notice because it did not state that failure to comply with the notice will serve as a basis for dismissal for failure to prosecute. Therefore the judge did not have the authority, sua sponte, to dismiss the complaint:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) “‘unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , here, the conditional order of dismissal was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute … . “In the absence of proper notice, the court was without power to dismiss the action for the plaintiff’s failure to comply with the conditional order of dismissal” … . Under these circumstances, the action should have been restored to the active calendar. Nationstar Mtge., LLC v Adekoje, 2026 NY Slip Op 05315. Second Dept 9-16-26

Practice Point: Although a conditional order of dismissal can serve as a valid 90-day notice pursuant to CPLR 3216, to do so the conditional order of dismissal must meet all the content requirements mandated by CPLR 3216, including informing the plaintiff that the failure to comply will result in dismissal of the complaint.

 

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PURSUANT TO GENERAL MUNICIPAL LAW 50-H, IT WAS THE MUNICIPALITY’S, NOT THE CLAIMANT’S, OBLIGATION TO RESCHEDULE THE 50-H EXAMINATION AFTER CLAIMANT’S COUNSEL WITHDREW; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED BASED ON CLAIMANT’S FAILURE TO APPEAR AT THE EXAMINATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court on an issue first raised on appeal, determined claimant’s failure to appear at an oral examination pursuant to General Municipal Law section 50-h did not warrant dismissal of the complaint. The scheduled examination did not take place because claimant’s counsel withdrew. Pursuant to the statute, it was the municipality’s, not the claimant’s, obligation to reschedule the examination:

Although [plaintiff’s] contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture … .

“‘The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim'” … . “The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” … . Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50-h[5]). “‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50-h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority'” … , and a plaintiff’s failure to so comply warrants dismissal of the action … .

However, pursuant to General Municipal Law § 50-h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.” Thus, “[w]hen . . . the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff’s failure to appear for a[n examination] will not warrant dismissal of the complaint” … . Jones v New York City Hous. Auth., 2026 NY Slip Op 05293, Second Dept 9-16-26

Practice Point: Pursuant to General Municipal Law 50-h, if a claimant requests an adjournment or a postponement of a 50-h examination, it is the municipality’s, not the claimant’s, obligation to reschedule.

 

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NEW YORK STATE OFFICE OF MENTAL HEALTH (OMH) WAS PROPERLY HELD IN CONTEMPT AND FINED $100-A-DAY FOR THE DELAY IN TRANSFERRING THE MENTALLY ILL DEFENDANT FROM RIKERS ISLAND TO A SECURE PSYCHIATRIC FACILITY (FIRST DEPT).

The First Department determined the New York State Office of Mental Health (OMH) was properly held in contempt based on a delay in transferring the mentally ill defendant from Rikers Island to a secure psychiatric facility. $100-a-day damages were assessed:

Defendant was charged with assault in the second degree based on the complaint that he pushed his mother to the ground causing her to twist and injure her toe. He was remanded to the custody of the Department of Corrections and held at Rikers Island. The charge was later elevated from a misdemeanor to a felony based on his mother’s age. After defendant was evaluated for competency a second time in January 2025, both evaluators concluded that defendant was unfit to proceed. Supreme Court agreed, and on February 24, 2025, it ordered defendant remanded to the custody of OMH for restorative treatment. The order of commitment required that the defendant “be transferred into the custody of the Office of Mental Health no later than March 24, 2025” and warned that a failure to do so would result in a finding of contempt. It is uncontested that the transfer was delayed until July 25, 2025. * * *

OMH argues that defendant failed to prove that OMH’s delay caused his mental health to deteriorate. However, the relevant issue is not whether defendant deteriorated while he was in custody but whether OMH provided the requisite restorative care. In any event, Supreme Court was entitled to credit Dr. Goldsmith’s testimony that defendant’s condition did deteriorate at Rikers. OMH’s attempt to blame defendant for his loss because he is mentally ill and refuses treatment is risible. The purpose of a transfer to a secure psychiatric facility is so that a mentally ill defendant can receive statutorily mandated restorative care and treatment. To attribute defendant’s loss or injury to defendant’s preexisting mental illness, which causes defendant to refuse treatment, turns Criminal Procedure Law article 730 on its head. People v G.O., 2026 NY Slip Op 05242, First Dept 9-10-26

 

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HERE THE PERMANENT STAIRWAY WHERE PLAINTIFF WAS INJURED, THE SOLE VIABLE MEANS OF ACCESS TO THE WORK SITE, CONSTITUTED A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1); PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the permanent stairway where plaintiff was injured, which had worn or missing treads, was the sole viable means of access to the floors where plaintiff was working. Although another stairway was available, plaintiff was told not to use it because it was used by COVID patients. Therefore plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. The First Department rejected the argument that Labor Law liability was not available because plaintiff was not working on the stairway itself. The First Department also rejected the argument that a permanent stairway is not a statutory safety device:

The statute protects a worker from gravity-related hazards posed by a permanent stairway that “provided the sole means of access to the floors of the building” where the worker was working … . However, the issue of whether a stairway is the sole means of access should not be construed so strictly as to “preclude recovery merely because plaintiff had an alternative means to descend from his work area, especially when that alternative route may have seemed more dangerous than the stairs plaintiff did utilize” … . Here, the only other staircase available to plaintiff at the worksite would have required him to access a stairway used by hospital patients during the height of the COVID-19 pandemic, which he was instructed not to use. As a result, under these facts, the purported alternative staircase did not present a viable means of egress for plaintiff, and the staircase plaintiff used was his sole means of access to his work area … . Moreover, the stairs were defective in that the treads were worn out or missing.

We have considered and rejected … the argument that the statute does not cover permanent staircases … . As we recently explained, “permanent staircases are not categorically excluded from Labor Law 240(1) coverage,” and will qualify as a safety device under the Labor Law where the staircase is the sole means accessing the plaintiff’s work area … .

… Supreme Court improperly concluded that this principle applies only in situations where the plaintiff was required to work on the staircase upon which he fell … .

Supreme Court’s … conclusion that a plaintiff using a permanent staircase as a “passageway” will not give rise to Labor Law 240(1) liability is also misplaced … .  Riley v Memorial Sloan-Kettering Cancer Ctr., 2026 NY Slip Op 05241, First Dept 9-10-26

Practice Point: A permanent stairway which is the sole viable means of access to a work site is a “safety device” within the meaning of Labor Law 240(1).

 

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THE DENIAL WITHOUT PREJUDICE OF A REQUEST TO APPLY FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) DOES NOT IMPLICATE THE MERITS OF RESENTENCING AND IS NOT APPEALABLE (THIRD DEPT).

The Third Department, over a detailed dissent, determined the dismissal-without-prejudice of the pro se defendant’s request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (CPL 440.47) was not appealable:

CPL 440.47 is a procedural vehicle that allows “presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)” … . CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility for same. To do so, there are two simple criteria: such person “[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw” ,,, . If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps … . However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice … . It is evident from the plain language contained herein that such dismissal cannot constitute “an order denying resentencing” (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 … . To that end, at step one, the defendant is merely considered a “person” rather than an “applicant” and, as such, has not actually asked the court to grant resentencing … . By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing … .. People v Shawn A., 2026 NY Slip Op 05216, Third Dept 9-3-26

 

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THE DEFENSE MOTION TO SET ASIDE THE JURY VERDICT AND REINSTATE COUNTERCLAIMS SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have reinstated defendants’ counterclaims which were rejected by the jury after a lengthy trial. The First Department explained the criteria for setting aside a jury verdict pursuant to CPLR 4404(a):

Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial. Pursuant to CPLR 4404(a), a court may set aside a jury verdict, or order a new trial, where “the verdict is contrary to the weight of the evidence,” or “in the interest of justice.” In making this determination, the court must proceed with caution, because “in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” … . Thus, a verdict should only be set aside if the evidence is so in favor of the moving party that the verdict “could not have been reached on any fair interpretation of the evidence” … , or in the interests of justice due to “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . Beach v Touradji Capital Mgt., LP, 2026 NY Slip Op 05231, First Dept 9-3-26

Practice Point: Consult this decision for insight into the criteria for setting aside a jury verdict. Here the jury’s rejection of defendants’ counterclaims should not have been disturbed.​

 

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IN THIS RENT RESET ARBITRATION, THE UMPIRE COMMUNICATED DIRECTLY WITH LANDLORD’S COUNSEL, CREATING THE APPEARANCE OF IMPROPRIETY; THE AWARD WAS THEREFORE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined communications between an umpire and the landlord’s counsel created the appearance of impropriety requiring the vacation of the arbitration award in the rent reset proceeding:

… [T]he tenants exercised their second extension option under the lease … . The parties attempted to negotiate a new annual net rent, but upon reaching an impasse, they proceeded to arbitration before the American Arbitration Association (the AAA). That arbitration concluded with a one-week hearing that resulted in a final award largely in the landlord’s favor. * * *

… [T]he umpire created an appearance of impropriety when he directly communicated with the landlord’s counsel about a paid offer to serve as a neutral umpire in the [another arbitration] and did so without including the tenants in the conversation. Further, the umpire’s subsequent attempt to remedy this issue with a disclosure to the tenants failed to cure his misconduct. Indeed, the disclosure was incomplete as it was the landlord’s counsel, not the umpire, who informed the tenants of the direct communication with the landlord’s counsel. To compound matters, the umpire then attempted to bargain with the tenants — offering to trade his rejection of the offer in exchange for the cooperative withdrawing its recusal application. Ultimately, although he did eventually decline the offer, the umpire’s actions irreversibly and improperly implicated the “integrity of the process” … . Matter of 57th & 6th Ground LLC v Carnegie House Tenants Corp., 2026 NY Slip Op 05230, First Dept 9-3-26

Practice Point: In this arbitration of a rent reset, the umpire communicated directly with landlord’s counsel, creating the appearance of impropriety. The award was therefore vacated.

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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HERE IN THIS BUS-TRAFFIC-ACCIDENT CASE, THE DEFENDANTS ADMITTED THE BUS DRIVER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT; A NEGLIGENT-HIRING-AND-RETENTION CAUSE OF ACTION, THEREFORE, WAS NOT AVAILABLE TO THE PLAINTIFFS; THE PLAINTIFFS WERE NOT ENTITLED TO DISCOVERY OF THE DRIVER’S PERSONNEL FILE OR THE POLICY MANUAL FOR DRIVER RETENTION AND TRAINING BECAUSE BECAUSE THOSE DOCUMENTS WERE NOT RELEVANT TO THE EMPLOYER’S LIABILITY UNDER RESPONDEAT SUPERIOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this bus-traffic-accident case, determined that neither the bus driver’s personnel file nor the policy manual relating to the retention and training of the bus driver were discoverable. Those records would only be relevant to an action for negligent hiring and retention, which (generally) is not available when the suit against the driver’s employer is based upon respondeat superior:

Generally, “where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention” … . Thus, since here, the defendants admit that [the driver] was acting within the scope of his employment at the time of the accident, neither his personnel file nor the portions of the defendants’ policy manual relating to the retention or training of [the driver] are discoverable … . In addition, the plaintiff failed to show that any alleged remaining portions of the policy manual “would yield matter material and necessary to the prosecution or defense of the action” … . Lewis v New York City Tr. Auth., 2026 NY Slip Op 05175, Second Dept 9-2-26

​Practice Point: Where the employer admits the employee was acting within the scope of his employment at the time of the accident, the employer is liable for the negligence of the employee under a theory of respondeat superior. Generally, in that circumstance a negligent hiring and retention cause of action is not available to the plaintiff.