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THE ALLEGATIONS THAT DEFENDANT’ GRABBED PLAINTIFF’S SHOULDERS AND TOUCHED PLAINTIFF’S CHEEKS DID NOT STATE CAUSES OF ACTION FOR TORTIOUS “FORCIBLE TOUCHING” OR FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; COMPLAINT DISMISSED OVER AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, over an extensive dissent, reversing Supreme Court, determined this lawsuit alleging a tortious “forcible touching” and intentional infliction of emotional distress should have been dismissed:

Plaintiff alleges that during the summers from 2000 through 2003, he worked in the wardrobe department of Roanoke Island Historical Association (RIHA), where defendant Long also worked. According to plaintiff, during that period there were numerous instances where Long committed acts of sexual misconduct toward plaintiff. The most egregious occurred in 2002, when Long engaged in nonconsensual sex with plaintiff while plaintiff was intoxicated. Plaintiff alleges that six years later, in 2008, after not having had any contact with Long, he briefly encountered Long in a public costume shop where Long grabbed plaintiff’s shoulders and touched plaintiff’s cheeks. * * *

Supreme Court erred in denying defendant Long’s motion to dismiss the complaint pursuant to CPLR 3211, as defendant established that plaintiff’s allegations do not “fit within any cognizable legal theory” … . Plaintiff failed to properly allege facts sufficient to establish a tort that would constitute forcible touching under Penal Law § 130.52(1). Long’s alleged acts of grabbing plaintiff’s shoulders and touching his cheeks “with the intimacy of a grandmother greeting her grown grandchild” were not, under the circumstances, sexual or intimate in nature, as required by the statute.

Penal Law § 130.52(1) was enacted in 2000. It states that “a person is guilty of forcible touching when such person intentionally, and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” “[F]orcible touching includes squeezing, grabbing or pinching” … . * * *

Plaintiff’s shoulders and cheeks did not constitute “sexual or intimate parts” that were “sufficiently personal or private that [they] would not be touched in the absence of a close relationship between the parties” … . Thus, Long’s acts of grabbing plaintiff’s shoulders and touching his cheeks were not, under the circumstances, sexual or intimate in nature, as necessary to state a claim for forcible touching … . Watson v Roanoke Is. Historical Assn., 2026 NY Slip Op 02949, First Dept 5-12-26

Practice Point: Consult this decision for insight into the allegations necessary to state a cause of action for tortious “forcible touching.”

 

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TENANTS AND THE PROPERTY MANAGER COULD BE LIABLE FOR INJURY CAUSED BY FURNITURE BLOWN OFF A 12TH STORY TERRACE BY WIND (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the plaintiff’s actions against the property manager and tenants should not have been dismissed. Plaintiff alleged she was injured by a heavy wooden lounge chair that was blown off a 12th story apartment terrace:

In this personal injury action, plaintiff seeks damages for injuries that she allegedly sustained when a heavy wooden lounge chair struck her after it was blown off the terrace of a 12th floor apartment in Manhattan. The building was owned by 15 Union Square West and managed by BHS; the apartment itself was owned by GR Realty and was rented to the tenant defendants.

Supreme Court should not have dismissed the complaint as against the tenant defendants and BHS. There are issues of fact as to whether the tenant defendants, who owe a common-law duty of reasonable care to maintain the premises in a reasonably safe condition independent of any obligation that might be imposed by their lease, had constructive notice of the potentially hazardous condition created by the unsecured lounge chair … . Although the lease stated that tenant defendants were not permitted to change the location of any furniture in the apartment, there were occasions when GR Realty granted tenant requests to move furniture. The record also presents evidence that the tenant defendants used the terrace during their occupancy, and issues of fact exist as to whether the risk posed by this furniture was visible and apparent during this period.

Similarly, there are issues of fact as to whether BHS, which managed the property, had constructive notice of the potentially hazardous condition and exercised control over the use of the terraces yet failed to take sufficient precautions in order to prevent or remedy a hazardous condition … . There is evidence in the record that BHS had previously been involved in notifying owners of potential hazards posed by windy conditions, and in fact had helped owners to secure furniture or bring it inside during bad weather…. . Sen v GR Realty Holdings LLC, 2026 NY Slip Op 02947, First Dept 5-12-26

Practice Point: Consult this decision for insight into the various theories of liability triggered by injury caused by furniture which was blown off a 12th story apartment terrace.​

 

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DEFENDANTS DESTROYED SPEADSHEETS WHICH MAY HAVE DEMONSTRATED PLAINTIFF’S TERMINATION WAS NOT MOTIVATED BY THE NEED TO CUT COSTS; PLANTIFF IN THIS EMPLOYMENT DISCRIMINATION ACTION WAS ENTITLED TO AN ADVERSE INFERENCE JURY CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants in this employment discrimination action should have been sanctioned for spoliation of evidence. The defendants destroyed retail store spreadsheets which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs. Plaintiff alleged he was terminated because he aided Egyptian employees who complained on national origin or religious discrimination. The First Department held plaintiff was entitled to an adverse inference jury charge:

… [T]he court erred in denying spoliation sanctions. Defendants breached their duty to preserve evidence by destroying retail store spreadsheets which were the only contemporaneous data on profits, payroll, and performance after litigation was reasonably anticipated … . Plaintiff’s October 2017 warning against tampering with accounting and payroll records triggered a preservation obligation that required defendants to suspend routine destruction policies … . Defendants cannot claim the records were deleted in the ordinary course of business, as a routine retention policy is no defense once the duty to preserve attaches … . Further, sanctions are warranted where a party’s negligence or intent deprives an opponent of the means of proving their claim … . Here, the destroyed spreadsheets are central to the issue of pretext. While defendants claim cost-based downsizing as the reason for termination, the destroyed data was the only evidence available to test whether the stores were actually underperforming or if plaintiff’s termination was retaliatory. Because this unique, irrecoverable evidence was within defendants’ exclusive control, its destruction is highly prejudicial. Accordingly, plaintiff should be granted an adverse inference charge at the time of trial. Pescales v Pax Ventures LLC, 2026 NY Slip Op 02942, First Dept 5-12-26

Practice Point: Defendants in this employment discrimination action were sanctioned for destroying financial records which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs.

 

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ALTHOUGH DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT PLEAD THE EMERGENCY DOCTRINE AS AN AFFIRMATIVE DEFENSE, THE DEFENSE WAS PROPERLY RAISED IN OPPOSITION TO PLAINTIFFS’ SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant raised a question of fact in this rear-end collision case. Although defendant had not pleaded the emergency doctrine as an affirmative defense, the doctrine was properly raised in opposition to plaintiffs’ summary judgment motion. Defendant was travelling behind a box car on the interstate when the box car suddenly moved into the right lane to avoid plaintiff’s vehicle which was stopped or disabled. Defendant alleged she was unable to stop or change lanes before striking plaintiffs’ vehicle

… Jakubcin [defendant] raised a triable issue of fact by offering a nonnegligent explanation for the collision … . Jakubcin testified that she was travelling southbound in the center lane on Interstate 95 and that she was following a box car for about 10 miles at 60 miles per hour, when the box car suddenly moved into the right lane after signaling, at which time Jakubcin first observed plaintiffs’ car. Jakubcin testified that plaintiffs’ car was slow moving or became disabled and abruptly stopped in the center lane, only “seconds” in travel time ahead of Jakubcin’s car. The box car had obstructed Jakubcin’s view of the center lane conditions. Jakubcin quickly discerned she could not safely move into either the left or right lanes of the highway due to cars travelling in those lanes near her vehicle. Thus, Jakubcin’s testimony “raises a triable issue as to whether [s]he was entitled to expect that traffic would continue unimpeded” … . Further, there was evidence that plaintiffs’ car was not working and had no lights or emergency lights activated … . While Jakubcin did not plead the emergency doctrine as an affirmative defense, she was not precluded “from raising the issue in response to [plaintiffs’] summary judgment motions” … .  Pearson v Jakubcin, 2026 NY Slip Op 02930, First Dept 5-12-26

Practice Point: Here in this rear-end collision case, defendant successfully raised the emergency doctrine in opposition to summary judgement, despite not pleading the doctrine as an affirmative defense.

 

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ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined RPTL 421-a (16) (c) (x) does not foreclose judicial review of the Comptroller’s rulings concerning certain tax benefits available to property developers who provide affordable housing and pay construction workers at the statutory rate. Although the statute does not explicitly allow judicial review, the case law supports the conclusion that Article 78 review is available:​

… Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding, both during the pendency of the proceeding and following the completion of judicial review … . During the pendency of such a proceeding, the court may “stay . . . the enforcement of [the] determination under review” (CPLR 7805 …). Correspondingly, once judicial review is complete, the reviewing court is authorized to “annul or confirm . . . or modify” the determination “in whole or part” and may “direct. . . specified action by the respondent” (CPLR 7806). The court’s authority under CPLR 7806 to direct specified action by the respondent agency encompasses “any . . . directions needed to secure to the petitioner the [a]rticle 78 relief ordered” and a court’s judgment embodying those directions “is enforceable by contempt proceedings” … . In other words, if a reviewing court found the Comptroller’s final determination under RPTL 421-a (16) (c) (x) to have been made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or lacking in substantial evidence (see CPLR 7803 [3], [4]), it would have broad remedial power under CPLR 7806 to annul the Comptroller’s determination, which would, in effect, render the underlying administrative judgment unenforceable, and could also direct the Comptroller to take action to secure the vacatur of the administrative judgment. Matter of Bldg 44 Devs. LLC v State of New York, 2026 NY Slip Op 02898, Third Dept 5-7-26

Practice Point: Even where a statute does not explicitly allow judicial review, the case law may support Article 78 review, rendering the statute constitutional.

 

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THE JUDGE’S ERROR IN REFUSING TO GRANT A BRIEF ADJOURNMENT WHEN THE PEOPLE BELATEDLY OFFERED A REBUTTAL WITNESS HAD A “SPILL-OVER-EFFECT” TAINTING THE OTHER COUNTS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined (1) the court erred in not granting the defense an adjournment when the People belatedly offered rebuttal testimony, and (2) the “spill-over-effect” of that error tainted the convictions:

The trial court may, in the exercise of its discretion, receive belatedly disclosed rebuttal testimony, ” ‘but before doing so, it must, upon application of the … . We therefore conclude that County Court erred when, after granting the prosecution’s request to offer rebuttal proof on Monday, it then denied defendant’s application for any adjournment before the prosecution called its rebuttal witness … . Given that proof of defendant’s guilt without the rebuttal witness’ testimony was “not overwhelming,” the error cannot be deemed harmless … .

In determining whether an error in the proceedings relating to one count requires reversal of the conviction of other jointly tried counts, we apply “[s]pillover analysis” and evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[I]f there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way,” reversal is required (id. [internal quotation marks and citations omitted]). Because resolution of all three counts here hinged on the jury’s assessment of the victims’ credibility and the veracity of the defense claims, there is a reasonable possibility that the decimation of defendant’s alibi by the rebuttal evidence meaningfully influenced the jury’s guilty verdict on the 2018 count … . The rebuttal proof, received without affording defendant a brief adjournment to investigate, cast defendant’s alibi witness as unscrupulous and incredible. Under these unusual circumstances, we reverse defendant’s convictions and order a new trial on all counts … . People v Shaver, 2026 NY Slip Op 02895, Second Dept 5-7-26

Practice Point: An error affecting the proof of one count may have a “spill-over-effect” and taint the remaining counts, requiring a new trial.

 

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NEW YORK’S “TOLLING” PROVISION FOR PREDICATE FELONIES REQUIRES ONLY A MATHEMATICAL CALCULATION TO DETERMINE HOW LONG THE TEN-YEAR LOOK-BACK IS EXTENDED BY PERIODS OF A DEFENDANT’S INCARCERATION; THEREFORE THERE IS NO NEED FOR A JURY TO MAKE FACTUAL FINDINGS BEFORE THE LOOK-BACK CALCULATION CAN BE MADE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined that New York “tolling provision,” which extends the ten-year look-back for predicate felonies by the amount of time defendant was incarcerated, is a purely mathematical calculation that does not require consideration by a jury:

…New York’s tolling provision requires a determination of whether the defendant was incarcerated and, if so, the dates of incarceration (see Penal Law §§ 70.06[1][b][iv],[v]; 70.08[1][b]). Thus, the tolling provision requires “rote arithmetic calculation to be made based on certified public records” … . The determination is completely objective. There is no assessment of defendant’s conduct or culpability. Rather, it is a determination of the amount of time a defendant was incarcerated between a previous conviction and the instant offense. There need only be a review of the official records of incarceration—i.e., when the defendant was admitted into the facility, when the defendant was released and any time in between. People v Young, 2026 NY Slip Op 02883, First Dept 5-7-26

Practice Point: Consult this opinion for insight into the nature and application of New York’s predicate-felony “tolling” provision.

 

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THE STORM-IN-PROGRESS RULE DOES NOT APPLY TO WATER INSIDE A BUILDING TRACKED IN DURING A RAIN STORM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Taylor, clarified and reiterated the principle that the storm-in-progress rule does not apply to tracked-in water inside a building:

… [T]his Court has not expanded the storm in progress rule to include hazards that have been tracked-in to interior spaces … , and we decline [defendant property owner’s] invitation to do so. A property owner’s efforts to remove tracked-in hazards during an ongoing storm are simply not subject to the same exigencies as when removing exterior hazards. In other words, removing tracked-in hazards during an ongoing storm is not a fruitless endeavor, and therefore the suspension of a property owner’s duty of care with respect to such hazards is not justified.

Rather, tracked-in conditions from a storm in progress are to be treated by the principles governing premises liability generally … . Rowland v Brooklyn Hosp. Ctr., 2026 NY Slip Op 02861, Second Dept 5-6-26

Practice Point: The storm-in-progress rule does not apply to water inside a building tracked in during a rain storm.​

 

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IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendants did not demonstrate the defect was trivial as a matter of law:

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the “‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Photographs that “‘are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … . When “deciding in a given case whether photographs may sufficiently show triviality without objective measurement, it depends on what the photographs depict” … . The “persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them” … .

Here, the evidence submitted by the defendants, including, among other things, a transcript of the plaintiff’s deposition testimony and photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically, the height of the allegedly misleveled portion of the sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted … . Rosario v Wyckoff Supermarket Assoc., Inc., 2026 NY Slip Op 02860, Second Dept 5-6-26

Practice Point: Consult this decision for insight into the evidence required to demonstrate a sidewalk defect is trivial where no measurements are submitted in support of the summary judgment motion.

 

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DEFENDANT WAS NOT ENTITLED TO VACATION OF HIS CONVICTIONS ON THE GROUND THE COUNTS WHICH WERE DISMISSED AT TRIAL HAD A PREJUDICIAL “SPILL-OVER-EFFECT” ON THE REMAINING COUNTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction under a “prejudicial-spill-over-effect” theory should not have been granted. Defendant argued the counts which were dismissed at trial had tainted the counts for which he was convicted:​

“Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[T]he paramount consideration in assessing potential spillover error is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” … . “By contrast, where the jury’s decision to convict on the tainted counts had only a tangential effect on its decision to convict on the remaining counts, no reversal is warranted” … . “Spillover analysis is highly case-specific,” requiring an evaluation of “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . * * *

… [U]nder the circumstances of this case, there was no reasonable possibility that the evidence supporting the tainted counts pertaining to the robbery on November 27, 1995, had a spillover effect on the other counts … . As the jury’s decision to convict on the tainted counts had, at most, a tangential effect upon its decision to convict on the remaining counts pursuant to the robbery on November 13, 1995, vacatur of the defendant’s convictions related to the robbery on November 13, 1995, was unwarranted on the ground of spillover prejudice … . People v Breland, 2026 NY Slip Op 02848, First Dept 5-6-26

Practice Point: Consult this decision for insight into the argument that the counts on which defendant was convicted were tainted by the counts which were dismissed at trial.

 

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