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DEFENDANT EMPLOYER’S FAILURE TO ENGAGE IN COOPERATIVE DIALOGUE REGARDING ACCOMMODATION FOR THE DISABLED PLAINTIFF WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S NYC HUMAN RIGHTS LAW CLAIM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the disabled plaintiff was intitled to summary judgment on his NYC Human Rights Law claim because defendant-employer failed to engage in a cooperative dialogue regarding accommodation for his disability:

… [P]laintiff is entitled to summary judgment on his City HRL claim based on defendant’s failure to engage, within a reasonable time, in a cooperative dialogue regarding his accommodation, as the record presents no issues of fact as to defendant’s failure to engage plaintiff in a cooperative dialogue once defendant became aware of his condition (see Administrative Code of City of NY §§ 8-102; 8-107[28][a] …). Contrary to defendant’s contention, an employer’s failure “to engage in a good faith interactive process is . . . independently actionable under the [City] HRL” … . Kocher v Mount Sinai Hosp., 2026 NY Slip Op 06007, First Dept 10-15-26

Practice Point: An employer’s failure to engage in cooperative dialogue with a disabled worker about accommodation for the disability violates the NYC Human Rights Law.

 

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DENIAL OF DEFENDANT’S MOTION TO SERVE A LATE ANSWER WAS AN ABUSE OF DISCRETION; THE DELAY WAS SHORT (18 DAYS), CREATED NO PREJUDICE, AND THE LAW OFFICE FAILURE WAS REASONABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Husain’s) motion to serve a late answer should have been granted:

The 18-day delay in answering the complaint was relatively short and plaintiff suffered no prejudice from the delay; indeed, Husain has already been deposed by the wife’s counsel … . In addition, the law office failure that occasioned the delay was reasonable, and there is no evidence that it was due to willfulness. Husain’s counsel explained that he inadvertently missed the deadline for answering the amended complaint because of work obligations related to this action — namely, preparing for and participating in an April 10, 2025 arbitration hearing concerning related claims, as well as preparing for a June 2025 trial in this action — and because of a break for a religious holiday … . Given the surrounding circumstances, Supreme Court should have granted the motion, especially in light of the strong public policy in favor of resolving cases on the merits … .Dalessandro v Dalessandro, 2026 NY Slip Op 06000, First Dept 10-15-26

Practice Point: Consult this decision for insight into the factors a court should consider when ruling on a motion to serve a late answer.

 

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PLAINTIFF’S HUSBAND ALLEGEDLY BECAME INTOXICATED AT DEFENDANT’S RESTAURANT, FELL DOWN A STAIRCASE AND DIED FROM HIS INJURIES; PURSUANT TO THE DRAM SHOP ACT, PLAINTIFF WIFE SUED THE RESTAURANT BOTH INDIVIDUALLY AND AS EXECUTOR OF DECEDENT’S ESTATE; HER INDIVIDUAL SUIT SURVIVED DISMISSAL; BUT THE SUIT ON BEHALF OF DECEDENT’S ESTATE WAS DISMISSED; AN INTOXICATED PERSON, OR THE ESTATE OF AN INTOXICATED PERSON, CAN NOT SUE UNDER THE DRAM SHOP ACT FOR INJURIES RESULTING FROM INTOXICATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Vera, the widow of the allegedly intoxicated decedent, could sue under the Dram Shop Act individually, but not as a representative of the decedent’s estate. Decedent fell down a staircase at defendant restaurant (Shuko):

In this Dram Shop Act action, plaintiffs allege that defendant Shuko, a restaurant, repeatedly served alcoholic beverages to the decedent, causing his intoxication and subsequent fall down a staircase inside the restaurant. The decedent sustained severe injuries which, according to plaintiffs, later resulted in his death. Vera, who is the decedent’s widow, is suing both in her individual capacity and as executor of the decedent’s estate, and is seeking damages, inter alia, for loss of support. * * *

…Vera’s allegations that Shuko sold alcohol to the decedent despite his being visibly intoxicated, and that she was personally injured by the loss of means of support is sufficient to survive a motion to dismiss … . …

However, while “[t]he Dram Shop Act creates a cause of action in favor of a third party injured or killed by an intoxicated person, [ ] it does not create a cause of action in favor of the intoxicated person” … . Accordingly, “an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … . The second cause of action against defendant Shuko therefore fails to state a cause of action insofar as it is asserted on behalf anyone other than plaintiff Vera individually. Vera v BH Broadway Owner LLC, 2026 NY Slip Op 05921, First Dept 10-13-26

Practice Point: Here the Dram Shop Act was applied where an intoxicated restaurant patron fell down a restaurant staircase and subsequently died from his injuries. Decedent’s wife could sue the restaurant under the Dram Shop Act in her individual capacity for loss of support. However, decedent’s wife could not sue under the Dram Shop Act on behalf of the decedent’s estate. …  “[A]n intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … .

 

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DEFENDANTS REPUDIATED THE HOME-RENOVATION CONTRACT WHEN THEY SUBMITTED A PROPOSED CHANGE ORDER REQUESTING ADDITIONAL PAYMENTS AND THREATENED TO STOP WORK IF PLAINTIFFS DID NOT AGREE; THE REPUDIATION ENTITLED PLAINTIFFS TO DAMAGES FOR TOTAL BREACH (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants (Star) repudiated the home-renovation contract when they submitted a proposed change order and threatened to stop work unless paid in accordance with the change order. The repudiation entitled plaintiffs to damages for a total breach:

On January 14, 2022, Star sent plaintiffs a proposed “Change Order 11,” which sought payment of $117,200 for overhead allegedly incurred between September and December 2021 and additional monthly payments of $29,300 starting in January 2022 through the project’s conclusion. Plaintiffs refused to approve Change Order 11 and, by January 24, 2022, Star substantially ceased performing on the project. * * *

Plaintiffs are entitled to summary judgment on their breach of contract claim because they proved as a matter of law that defendants repudiated the contract. “[W]hen a party repudiates contractual duties prior to the time designated for performance and before all of the consideration has been fulfilled, the repudiation entitles the nonrepudiating party to claim damages for total breach” … . Here, the record establishes that defendants repudiated the contract by issuing a change order requesting additional payments followed by a threat to not return to the job unless plaintiffs agreed to pay the initial amount demanded, which threat was fulfilled when they abandoned the project … . Ho v Star Contrs., Inc., 2026 NY Slip Op 05908, First Dept 10-13-26

Practice Point: Here the defendants, by demanding more payments and threatening to stop work if their demands were not met, repudiated the home-renovation contract entitling plaintiffs to damages for total breach.

 

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WHETHER PLAINTIFF FELL FROM THE SIXTH STEP OF AN UNSECURED A-FRAME LADDER OR THE SECOND STEP WAS IRRELEVANT; BOTH ARE COVERED UNDER LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor law 240(1) cause of action in this ladder-fall case. Whether plaintiff fell from the sixth step of the A-frame ladder or the second step was irrelevant:

Plaintiff “established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim by submitting proof, including an expert affidavit, that he fell from an unsecured [eight]-foot A-frame ladder that suddenly moved” as he was removing plywood sheets from the ceiling above him … . Plaintiff’s testimony that he fell from the ladder after it was struck by a falling piece of plywood is uncontroverted. It is irrelevant whether plaintiff was on the sixth step of the ladder when the plywood fell, as he testified, or on the second step of the ladder, as his coworker averred, because a fall from a height of two feet can constitute the type of elevation-related risk that is covered by the protections of Labor Law § 240(1) … .

Defendants’ argument that plaintiff was the sole proximate cause of his accident is unavailing. Even if plaintiff was negligent, it is “conceptually impossible” for a plaintiff’s negligence to be the sole proximate cause where it is shown that defendants’ violation of Labor Law § 240(1) was also a proximate cause of the accident … . In any event, plaintiff was not solely liable for the accident, because he followed his employer’s instruction in performing the work … . De Souza v 4720 Third Ave LLC, 2026 NY Slip Op 05905, First Dept 10-13-26

Practice Point: A fall from the second step of an unsecured A-frame ladder is covered under Labor Law 240(1) (two feet in height).

 

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A FEDERAL COURT APPOINTED PLAINTIFF-RECEIVER TO TAKE OVER A BUSINESS RUNNING A PONZI SCHEME; THE PLAINTIFF-RECEIVER SUED THE BROKER TO WHICH THE PONZI-SCHEME FUNDS WERE TRANSFERRED; BECAUSE PLAINTIFF-RECEIVER STEPPED INTO THE SHOES OF A WRONGDOER (THE PONZI SCHEME OPERATOR) TO SUE ANOTHER WRONGDOER (THE BROKER), THE “IN PARI DELICTO” (“IN EQUAL FAULT”) DOCTRINE APPLIED TO PROHIBIT THE SUIT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, over a comprehensive dissenting opinion, determined the plaintiff-receiver (appointed by the federal court to takeover a business running a Ponzi scheme) was prohibited from suing the broker to which the Ponzi scheme funds were transferred by the doctrine of “in pari delicto” (“in equal fault”). Under the doctrine, the courts will not get involved in a suit between two wrongdoers. The issue in this case is whether the court-appointed receiver steps into the shoes of the “Ponzi scheme” wrongdoer. The First Department held that the doctrine applies to the receiver, over an extensive dissent:

The common law doctrine of in pari delicto “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” … . In other words, the doctrine bars a corporation engaged in wrongdoing from suing its co-conspirators on the grounds of negligence or fraud … . “The justice of the in pari delicto rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent” … . The notion that “a wrongdoer should not profit from his own misconduct is so strong in New York that we have said the defense applies even in difficult cases and should not be weakened by exceptions” … .

The wrongdoer’s misconduct is not only imputed to the corporation through the bad acts of its officers … , but also to the corporation’s successors … . …

Plaintiff [receiver] argues, and the dissent agrees, that the in pari delicto doctrine does not apply to plaintiff because he is not a derivative shareholder plaintiff or a bankruptcy trustee appointed pursuant to 11 USC § 541, but rather a receiver appointed pursuant to 28 USC § 3103. It is true that plaintiff, as a receiver, is not subject to section 541 of the Bankruptcy Code. Nevertheless, there is no significant difference between bankruptcy trustees and nonbankruptcy receivers for purposes of in pari delicto … . Castleman v Interactive Brokers LLC, 2026 NY Slip Op 05904, First Dept 10-13-26

Practice Point: Here the “in pari delicto” (“in equal fault”) doctrine was applied to prohibit a suit by a court-appointed receiver which had taken over a business running a Ponzi scheme. The receiver sued the broker to which the Ponzi-scheme funds had been transferred. Under the “in pari delicto” doctrine, a court will not get involved in a dispute between wrongdoers. The doctrine applies to a wrongdoer’s successor, even a court-appointed receiver.

 

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THE PEOPLE’S AFFIRMATION IN SUPPORT OF THEIR MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S CASE TO FAMILY COURT WAS NOT BASED ON THE PROSECUTOR’S PERSONAL KNOWLEDGE AND FAILED TO ALLEGE DEFENDANT’S SPECIFIC CONDUCT; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People’s motion to prevent removal of the 17-year-old defendant’s case to Family Court should have been denied:

The court was … required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” … . Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” … . Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” … . A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal … .

Here, the People’s supporting affirmation relied heavily on the nature of the charges against defendant. … [E]ach count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant’s specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People’s supporting affirmation were based on the prosecutor’s “personal knowledge” …  and that conclusion is not a reasonable inference from the affirmation as a whole … . Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made … . Although the People also argued that defendant’s previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant’s actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges … , or whether defendant’s conduct constituted “escalating criminal behavior” … . The People’s motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” … on which the court could have relied in considering defendant’s actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults … . People v Quashawn C., 2026 NY Slip Op 05892, Fourth Dept 10-9-26

Practice Point: Consult this decision for a detailed discussion of what a prosecutor must demonstrate to prevent removal of a 17-year-old defendant’s case to Family Court.

 

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PRESENTING A VIDEOTAPED INTERVIEW OF THE 17-YEAR-OLD VICTIM TO THE GRAND JURY IN THE ABSENCE OF A COURT ORDER VIOLATED THE CRIMINAL PROCEDURE LAW AND IMPAIRED THE INTEGRITY OF THE PROCEEDINGS; INDICTMENT DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, dismissing the indictment without prejudice, determined presenting a videotaped interview of the 17-year-old victim without a court order violated the Criminal Procedure Law and impaired the integrity of the proceedings:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree … . Defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment on the ground that the grand jury proceeding failed “to conform to the requirements of [CPL] article [190] to such degree that the integrity thereof [was] impaired and prejudice to the defendant” resulted (CPL 210.35 [5]). We agree. The People correctly concede on appeal that the prosecutor improperly presented to the grand jury a videotaped interview of the approximately 17-year-old victim conducted by a social services caseworker in lieu of her live testimony without adhering to any of the requirements of CPL 190.32, including the obligation to seek a court order authorizing the videotaping of an examination of the victim as a “special witness” … . We agree with the parties that, under these circumstances, this error rendered the proceeding so irregular “that the integrity thereof [was] impaired and prejudice to . . . defendant may [have] result[ed]” (CPL 210.35 [5]; see CPL 210.20 [1] [c] …). People v Thompson, 2026 NY Slip Op 05874, Fourth Dept 10-9-26

Practice Point: Presenting a videotaped interview of a crime victim to a grand jury without a court order may impair the integrity of the proceedings requiring dismissal of the indictment.

 

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EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.

 

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NOTHING IN THE RECORD SUPPORTED THE PROSECUTOR’S REASON FOR STRIKING A JUROR, I.E., THAT THE JUROR “SPOKE BROKEN ENGLISH;” DEFENDANT’S BATSON CHALLENGE TO THE STRIKING OF THE JUROR SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defendant’s “Batson” challenge to the striking of a juror (juror No. 95] should have been granted. The record indicates the prosecutor’s reason for striking the juror, i.e., the juror’s “broken English,” was pretextual:

Evaluating the record … becomes problematic in instances where, like here, the nature of the race-neutral explanation given by a prosecutor pertains to a trait — i.e., speech and the ability to communicate — which is not easily captured by the record. Indeed, traits such as accent, dialect, tone, cadence, fluency or manner of speech are not typically represented on a transcript, but nonetheless remain part of the overall calculus as to whether an individual is perceived by others as being able to communicate effectively. This is why it is essential for trial courts, which are in a “unique position to verify . . . [what] is not clearly established in the appellate record” … , to create meaningful records for a reviewing court to uphold its determinations … .

Consequently, we are constrained to agree with defendant that County Court erred in denying his Batson challenge at step three. …[T]he record reflects that neither County Court nor defense counsel indicated any trouble understanding juror No. 95. Rather, County Court and defense counsel expressly disagreed with that characterization during voir dire … . Thus, there is nothing in the record to otherwise suggest that juror No. 95 had difficulty understanding or answering the limited questions posed by County Court, and the trial prosecutor did not ask any questions of this juror. In view of the sparseness of the record at trial and on remittal, as well as the comments and conduct of the trial prosecutor, a determination at step three that juror No. 95 did have difficulty communicating would, at best, be speculative … . Accordingly, since County Court’s determination was unsupported by the voir dire transcript, not based on its recalled observations or the assessment of the prosecutor’s credibility, and is otherwise without a basis in the record, we must reverse and remit the matter for a new trial … . People v Duplessis, 2026 NY Slip Op 05830, Third Dept 10-8-26

​Practice Point: The Third Department stressed the importance of creating a record during a Batson challenge to striking a juror, “particularly where innate traits such as language are at issue.” Here the prosecutor’s “race-neutral” reason for striking a juror, i.e., that the juror spoke “broken English,” had no support in the record. The appellate court, therefore, was “constrained” to find the reason “pretextual.”