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PETITIONER’S SISTER ACTED AS AGENT FOR THEIR DECEASED MOTHER; PETITIONER’S STANDING TO SEEK AN ACCOUNTING PURSUANT TO THE GENERAL OBLIGATIONS LAW WAS NOT AFFECTED BY THE PRINCIPAL’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that petitioner had standing to seek an order pursuant to General Obligations Law 5-1510 directing the respondent, petitioner’s sister, to provide a copy of all bank statements, receipts, disbursements and transactions entered into by the respondent while acting as agent for the parties’ deceased mother. Contrary to the Surrogate’s ruling, the death of the parties’ mother did not deprive petitioner of standing to seek an accounting:

… [T]he death of decedent did not divest petitioner of standing pursuant to General Obligations Law § 5-1510 (3) to commence this special proceeding. Section 5-1510 (3) identifies, both directly and by reference to section 5-1505 (2) (a) (3), the parties that have standing to seek judicial intervention for the purpose of, among other things, compelling an accounting of all receipts, disbursements and transactions entered into by an agent on behalf of the principal … . Specifically, it provides that “[a] special proceeding may be commenced pursuant to [section 5-1510 (2)] by any person identified in [section 5-1505 (2) (a) (3)]”—which includes a personal representative of the estate of a deceased principal—as well as “the agent, the spouse, child or parent of the principal, the principal’s successor in interest, or any third party who may be required to accept a power of attorney” … . The legislature’s use of “any” and the disjunctive “or” in that statutory language evinces its intent to provide a list of equal but alternative petitioners … . Lange v Dixson, 2025 NY Slip Op 05352, Fourth Dept 10-3-25

Practice Point: Here petitioner’s sister acted as agent for their deceased mother. The death of the principal (the parties’ mother) did not affect petitioner’s standing to seek an accounting pursuant to the General Obligations Law.

 

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ALTHOUGH THE LEASE WAS ENTERED INTO BY THE LIMITED LIABILITY COMPANY (LLC) THE OWNERS OF THE LLC SIGNED A PARAGRAPH AGREEING TO GUARANTEE THE PAYMENT OF THE RENT; THE BREACH OF CONTRACT ACTION AGAINST THE INDIVIDUAL OWNERS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the lease was entered into by the limited liability company (LLC), the owners of the LLC signed as personal guarantors of the rent payments. Therefore the breach of contract action against the individual owners should not have been dismissed:

“An agent executing a contract on behalf of a disclosed principal ‘is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally'” … . “[T]here [must be] clear and explicit evidence of the agent’s intention to substitute or superadd his [or her] personal liability for, or to, that of his [or her] principal” … . “There is great danger in allowing a single sentence in a long contract to bind individually a person who signs only as a corporate officer” … . A personal guaranty of a corporation’s obligation will be enforced against an individual where it “‘constitute[s] a deliberately stated, unambiguous, and separate expression personally obligating'” the individual under the contract … . * * *

Directly above the … signature lines was a paragraph stating that the parties agreed “[t]hat Roman and Solomon Davydov, are the owners of Tavak LLC, and they will act as personal guarantors for the payment of rent and any other[ ] costs, bills and fees and issues arising from the above enumerated items.” …

The clearly worded language of the guaranty clause made reference to Tavak and to each of the individual defendants by name, was contained in a short, two-page rider, and appeared directly above the rider’s signature lines, which the individual defendants signed without listing their corporate titles. 166-20 Union Turnpike, LLC v Tavak, LLC, 2025 NY Slip Op 05054, Second Dept 9-24-25

Practice Point: The owners of a limited liability company which enters a lease can agree to be personally liable for the debts of the LLC by guaranteeing the payment of rent.​

 

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THE BROKERAGE AGREEMENT DID NOT GIVE PLAINTIFF THE EXCLUSIVE RIGHT TO NEGOTIATE A LOAN ON DEFENDANT’S BEHALF; THEREFORE PLAINTIFF WAS NOT ENTITLED TO A COMMISSION ON A LOAN PROCURED BY DEFENDANT WITHOUT PLAINTIFF’S ASSISTANCE; “EXCLUSIVE RIGHT TO …” CRITERIA IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Warhit, determined the brokerage agreement did not give plaintiff the right to a commission when the defendant procured financing on its own:

This appeal presents the opportunity to examine the law of brokerage agreements granting an “exclusive right to sell,” as well as the application of such agreements outside the context of transactions involving the sale or lease of real property. In the present case, the plaintiff broker contends that it had an exclusive agreement to secure certain financing on behalf of the defendant and that it was entitled to a commission even though it was not the procuring cause of a loan the defendant ultimately obtained. * * *

The agreement did not clearly and expressly provide the plaintiff with the exclusive right to deal or negotiate on the defendant’s behalf … . The defendant demonstrated that the plaintiff was not the procuring cause of the loan … . Angelic Real Estate, LLC v Aurora Props., LLC, 2025 NY Slip Op 04223, Second Dept 7-23-25

Practice Point: Consult this opinion for an explanation of the contractual terms necessary to confer on a broker an exclusive right to procure a loan, such that a commission is owed even when the loan is procured without the broker’s assistance (not the case here).

 

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ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court noted that petitioner, as a limited liability company, can be penalized for the intentional violation of regulations by its employees under an agency theory:

… [P]etitioner [limited liability company], like corporations and similar entities, may be penalized “for the intentional acts of its agents that are either (1) in violation of positive prohibitions or commands of statutes regarding corporate acts, (2) authorized through action of its officers or which are done with the acquiescence of its officers, or (3) performed on behalf of the corporation if undertaken within the scope of the agents’ authority, real or apparent” … . As it is alleged here that a regulation governing petitioner’s conduct was intentionally violated by one of its employees in the course of his work, petitioner may be penalized for that conduct, if proven. * * *

Petitioner had no deficiencies in the five infection control surveys conducted in the months leading up to the December 2020 survey, counsel for the Department conceded at the hearing that it “had a great infection control program for many months,” and the surveyor who witnessed the violation acknowledged that petitioner had developed an appropriate infection control plan and properly trained employees about their obligations under it. Respondent was nevertheless free to credit the proof that the aide violated that policy on one occasion in December 2020 and, notwithstanding petitioner’s efforts to argue otherwise, we are satisfied that such constitutes substantial evidence in the record for the determination that petitioner’s employee “violate[d], disobey[ed] or disregard[ed]” multiple provisions of 10 NYCRR 415.19 and the infection control program in the course of his work and that such rendered petitioner liable (Public Health Law § 12). Matter of RSRNC, LLC v McDonald, 2025 NY Slip Op 04131, Third Dept 7-10-25

Practice Point: Here a violation of Public Health Law regulations concerning COVID-19 infection control by an employee of petitioner nursing home, a limited liability company, warranted imposing a penalty on the nursing home.

 

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ALTHOUGH A CONSTRUCTION MANAGER IS GENERALLY NOT LIABLE FOR INJURIES TO A WORKER UNDER LABOR LAW 240(1) OR 241(6), HERE THE CONSTRUCTION MANAGER, BY CONTRACT, WAS RESPONSIBLE FOR SAFETY AT THE WORKSITE AND SUPERVISED THE WORK; THEREFORE THE CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE PROPERTY OWNER AND POTENTIALLY LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the construction manager, Tishman, was the property owner’s statutory agent in charge of safety at the worksite. Therefore Tishman could be liable for injury to a worker pursuant to Labor Law 240(1):

“A construction manager of a work site is generally not responsible for injuries under Labor Law . . . [§ ] 240(1) . . . or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury” … . “The label given a defendant, whether ‘construction manager’ or ‘general contractor,’ is not determinative” … . “Instead, the core inquiry is whether the defendant had the ‘authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition'” … .

Here, in support of his motion for summary judgment, the plaintiff submitted the construction management services contract, which charged Tishman with, inter alia, enforcing subcontractors’ compliance with safety requirements and taking precautions to minimize the risk of injuries. The contract further gave Tishman the right to choose the means and methods of construction. Although Tishman did not directly supervise or control the plaintiff’s work, Tishman’s safety manager for the project testified at his deposition that he was “in charge of safety at . . . [the] project full-time.” In addition, a foreperson for another trade testified at his deposition that Tishman would correct other workers who were performing their work in an unsafe manner. Under these circumstances, Tishman was a statutory agent of DDC and was, therefore, potentially liable for the plaintiff’s alleged injuries under Labor Law § 240(1) … . Weekes v Tishman Tech. Corp., 2025 NY Slip Op 02959, Second Dept 5-14-25

Practice Point: Although a construction manager is generally not liable to an injured worker under Labor Law 240(1) or 241(6), here the construction manager was, by contract, a statutory agent of the property owner responsible for the supervision of the work and the safety of the workers. Statutory agents of the property owner or general contractor are potentially liable to injured workers under Labor Law 240(1) and 241(6).

 

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THE CONTRACTOR THAT HIRED THE SUBCONTRACTOR FOR WHICH THE INJURED PLAINTIFF WORKED WAS THE CONDOMINIUM DEFENDANTS’ STATUTORY AGENT AND THEREFORE CAN BE HELD LIABLE IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant Chelsea, the contractor that hired the subcontractor, Prince, for which the injured plaintiff worked, was the statutory agent of the condominium defendants in this Labor Law 240(1) case. Therefore the action against Chelsea should not have been dismissed:

Supreme Court improperly dismissed Chelsea from this action on the ground that it is not the condo defendants’ statutory agent for purposes of Labor Law § 240(1) liability. Chelsea was the only contractor that the condo defendants retained to perform their window-washing project, and Chelsea cannot escape liability under Labor Law § 240(1) because it delegated the work by subcontracting it to Prince, plaintiff’s employer … . Chelsea’s authority to supervise and control the work is also demonstrated by its subcontracting the work to Prince, and whether Chelsea actually supervised plaintiff’s work is irrelevant … . Barreto v Board of Mgrs. of 545 W. 110th St. Condominium, 2025 NY Slip Op 00185, First Dept 1-14-25

Practice Point: Liability under Labor Law 240(1) extends to the statutory agent of the property owner, here the contractor that hired the subcontractor for which the injured plaintiff worked.

 

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PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW, PROPERTY OWNERS (LANDLORDS) MAY BE HELD VICARIOUSLY LIABLE FOR THE DISCRIMINATORY CONDUCT OF THEIR AGENTS IN DEALING WITH PROSPECTIVE TENANTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy, determined the owners of housing accommodations may be vicariously liable (pursuant to the NYC Human Rights Law) for discrimination by their agents who deal with prospective tenants. Here plaintiff is an indigent person with AIDS. The complaint alleges he was denied housing by defendant, who acted as an agent for defendant property owners:

… [A]bsent vicarious liability, landlords would evade liability under the City HRL except when they directly interact with a prospective tenant. This is neither the mandate of the statute, nor supported by the legislative intent behind § 8-107 of the City HRL … .

The text of the City HRL also supports the imposition of vicarious liability upon landlords. Specifically, the key statutory remedy in the City HRL for housing discrimination is to approve the rental and to provide housing (see Administrative Code § 8-120[a][7]). Moreover, §§ 8-122 and 8-502 permit a tenant allegedly aggrieved by discriminatory practices to seek injunctive relief. In the absence of vicarious liability against owners, who have title to the prospective property, these remedies would be unavailable and rendered meaningless … . Newson v Vivaldi Real Estate LTD., 2025 NY Slip Op 00052, First Dept 1-7-25

Practice Point: Pursuant to the NYC Human Rights Law, landlords may be vicariously liable for the discriminatory conduct of their agents in dealing with prospective tenants.

 

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ABSENT SELF-INTEREST OR SELF-DEALING, AN ATTORNEY CAN NOT BE LIABLE TO A THIRD PERSON FOR INDUCING THE CLIENT TO BREACH A CONTRACT WITH THAT THIRD PERSON (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the attorney’s (Treco’s) inducing his client (Reynolds) to breach a contract with a third person is not actionable:

“[I]nasmuch as the relationship created between an attorney and his [or her] client is that of principal and agent, an attorney is not liable for inducing his [or her] principal to breach a contract with a third person, at least where he [or she] is acting on behalf of his [or her] principal within the scope of his [or her] authority” … . “Absent a showing of fraud or collusion, or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client” … . Here, the Treco defendants demonstrated, prima facie, that Treco was acting on Reynolds’s behalf and within the scope of Treco’s authority as Reynolds’s attorney … . In opposition, the plaintiffs failed to raise a triable issue of fact. The evidence cited by the plaintiffs did not support a finding that Treco’s acts in representing Reynolds were motivated by any self-interest or self-dealing or that the acts personally benefitted Treco … . Kugel v Reynolds, 2024 NY Slip Op 03173, Second Dept 6-12-24

Practice Point: Absent self-interest or self-dealing, and attorney is not liable to a third person for inducing a client to breach a contract with that third person.

 

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PLAINTIFF ALLEGED THE DRIVER WORKING FOR A LIVERY CAB COMPANY (CURB) AND THE NEW YORK CITY TRANSIT AUTHORITY (NYCTA) DROPPED HIM OFF NEAR A HOLE IN THE ROAD WHICH CAUSED HIM TO FALL; THE RESPONDEAT SUPERIOR (AGENCY) CAUSE OF ACTION SURVIVED; BUT THE COMPLAINT DID NOT SUPPORT THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the complaint did not state a cause of action for negligent hiring, retention and supervision. Plaintiff alleged the driver of car which provided a service to the New York City Transit Authority (NYCTA) through a livery cab company called Curb was negligent in dropping plaintiff off near a hole in the road. Although the negligence action against the NYCTA and Curb survived under an agency (respondeat superior) theory, there were no factual allegations in the complaint which supported the negligent hiring, retention and supervision cause of action:

“An employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Although such causes of action need not be pleaded with specificity … , the complaint must contain more than bare legal conclusions unsupported by factual allegations … . Here, the complaint did not allege that Curb or the NYCTA knew or should have known of the driver’s propensity for the conduct which caused the injury, nor contain any factual allegations to support such an inference. The bare legal conclusions were insufficient to state a cause of action alleging negligent hiring, training, and retention … . Bailey v City of New York, 2024 NY Slip Op 03156, Second Dept 6-12-24

Practice Point: Conclusory, as opposed to fact-based, allegations of negligent hiring, retention and supervision will not survive a pre-discovery motion to dismiss.

 

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step:

Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against CBRE [the managing agent] on the ground that CBRE does not own, operate, or control the premises. “Where, as here, a managing agent is accused of nonfeasance which causes injury to a third party, it is subject to liability only where it has complete and exclusive control of the management and operation of the property in question” … . “A managing agent is not in complete and exclusive control of the premises where the owner has reserved to itself a certain amount of control in the written agreement” … .

Here, CBRE established, prima facie, that it was a managing agent of the premises and that the management agreement was not so comprehensive and exclusive as to displace the duty of the owner of the premises to maintain the premises safely … . Quezada v CBRE, Inc., 2024 NY Slip Op 01829, Second Dept 4-3-24

Practice Point: A managing agent is not liable for injury caused by a dangerous condition on the managed property unless the agent exercises complete and exclusive control over the operation of the property.

 

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