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PLAINTIFF STEPPED BACKWARD TO ALLOW OTHERS TO EXIT THE ELEVATOR; THE FLOOR OF THE ELEVATOR WAS SIX TO TWELVE INCHES ABOVE THE BUILDING FLOOR AND PLAINTIFF SEVERELY INJURED HIS KNEE; THE SIX TO TWELVE INCH GAP WAS NOT THE TYPE OF “ELEVATION RISK” COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 6 to 12-inch gap between the floor of the elevator and the unfinished floor just outside the elevator door was not the type of “elevation risk” addressed by Labor Law 240(1). Defendants’ motion to dismiss the Labor Law 240(1) action should have been dismissed. However, Supreme Court properly denied defendants’ motion to dismiss the Labor Law 200 cause of action (unsafe condition):

Supreme Court should have granted defendants’ motion for summary judgment to the extent it sought dismissal of the Labor Law § 240(1) cause of action. Not every fall results in the “extraordinary protections of Labor Law § 240(1)” … . The statute protects workers only from those falls stemming from the “extraordinary elevation risks” created by “the relative elevation at which the [work] must be performed” and not from “the usual and ordinary dangers of a construction site” … .

It is true that “there is no bright-line minimum height differential that determines whether an elevation hazard exists” … . However, under the present circumstances, the 6-to-12 inch gap between the elevator doorway and the floor “was not a physically significant height elevation differential to trigger the protection of Labor Law § 240(1)” … . Also, neither the elevator nor the missing ramp was the “functional equivalent of a safety device enumerated in the statute” … . Instead, the record supports a conclusion that plaintiff’s injury arose from the type of “usual and ordinary” perils plaintiff could expect at his job site … . Ambrose v City Univ. Constr. Fund, 2026 NY Slip Op 05060, Second Dept 8-20-26

Practice Point: Here the six to twelve inch gap between the floor of the elevator and the building floor was not the type of “elevation risk” covered by Labor Law 240(1). Labor Law 200 (unsafe condition) may apply.​

 

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IN AN ACTION ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS, TO MAKE OUT A PRIMA FACIE CASE SUCH THAT THE FOUR-YEAR LOOK-BACK DOES NOT APPLY, PLAINTIFF NEED NOT DEMONSTRATE EACH ELEMENT OF COMMON-LAW FRAUD; SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF A FRAUDULENT SCHEME ARE WHAT MUST BE DEMONSTRATED (FIRST DEPT).

The First Department, reversing Supreme Court upon remittitur from the Court of Appeals, over a two-justice dissent, remitted the matter to Supreme Court for application of the recently clarified standard for the prima facie demonstration of fraud in an action alleging a fraudulent scheme to deregulate apartments. The issue is whether plaintiffs presented sufficient evidence of fraud to overcome the four-year look-back provision in the former Rent Stabilization Law:

… [T]he Court [of Appeals] refined the common-law standard applied to allegations of a fraudulent scheme to deregulate apartments subject to rent stabilization on a motion to dismiss under CPLR 3211 … . More specifically, [the Court of Appeals] “made clear that, for the fraud exception [to the four-year lookback period in the former Rent Stabilization Law § 26-516 (a)] to apply, a plaintiff need not demonstrate each element of common-law fraud and instead must put forth sufficient indicia of fraud or a colorable claim of a fraudulent scheme” … .

Parallel to the Court of Appeals’ development of the common law applicable to fraudulent deregulation claims, the legislature addressed the fraudulent deregulation standard by statute … . Under the legislature’s statutory amendments, the relevant inquiry is whether the landlord ” ‘knowingly engaged in [a] fraudulent scheme [to deregulate] after a consideration of the totality of the circumstances’ ” … To date, the Court of Appeals has not had occasion to “address to what extent this legislation differs from [the] common-law rule, and, if there is any difference, the impact or applicability of that legislation” … . Aras v B-U Realty Corp., 2026 NY Slip Op 04983, First Dept 8-13-26

​Practice Point; Consult this decision for insight into what a plaintiff must allege or demonstrate to survive a motion to dismiss or to warrant summary judgment in an action alleging a fraudulent scheme to deregulate apartments and seeking the “fraud exception” to the statutory four-year look-back for damages.

 

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SELF-SERVING STATEMENTS OF AN INTERESTED PARTY (THE PLAINTIFF IN THIS SLIP AND FALL CASE) WHICH REFERRED TO MATTERS EXCLUSIVELY WITHIN THAT PARTY’S KNOWLEDGE CREATED AN ISSUE OF CREDIBILITY PRECLUDING SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined inconsistencies in plaintiff’s deposition testimony as well as the fact he was the only witness to the incident raised credibility issues which precluded summary judgment:

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability. His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred … . The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which further raised credibility issues, since “[o]n a motion for summary judgment . . . , self-serving statements of an interested party which refer to matters exclusively within that party’s knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” … . Espinal v 1760-1770, LLC, 2026 NY Slip Op 04926, Second Dept 8-12-26

Practice Point: On a summary judgment motion, statements by an interested party which refer to matters exclusively within that party’s knowledge can create a credibility issue which precludes summary judgment.

 

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THERE WAS NO EVIDENCE DR. VELASQUEZ WAS NEGLIGENT; HIS SUMMARY JUDGMENT MOTION IN THE MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; THE OPINION IS FACT-SPECIFIC AND DETAILED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mendez, determined this medical malpractice action against one of the defendants, Dr. Velasquez, should have been dismissed. The opinion is fact-specific and goes through the evidence in granular detail. Roth v Velasquez, 2026 NY Slip Op 04915, First Dept 8-6-26

 

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THE SOLE PROXIMATE CAUSE OF DEFENDANT DRIVER’S STRIKING A 12-YEAR-OLD PEDESTRIAN WAS THE PEDESTRIAN’S SUDDENLY RUNNING ONTO THE HIGHWAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined this traffic-accident action stemming from defendant’s striking a 12-year-old pedestrian (J.W.) should have been dismissed. J.W. suddenly ran into defendant driver’s (Li’s) highway lane:

Li testified that he was driving south in the right lane of the Hutchinson River Parkway in the Bronx at about 45 miles per hour when he first saw J.W. standing 100 feet in front of him in a grassy area on the side of the highway to his right. Li testified that when the vehicle approached, J.W. made a “running gesture” and began to run towards the vehicle when it was approximately two car lengths away. Li did not brake or honk his horn, but did take his foot off the gas pedal and was in the process of moving into the left lane to move away from J.W. when J.W. entered the highway, at which point the front right side of the van struck him. Police conducted sobriety tests at the scene and allowed Li to drive the van from the scene. He did not receive a ticket, violation, or citation as a result of the collision. It is undisputed that pedestrians are prohibited from occupying the location where J.W. was traversing (Vehicle and Traffic Law § 1229-a).

Defendants established prima facie that J.W.’s act of running into the highway unlawfully was the sole proximate cause of the collision … . Li’s testimony shows that he was confronted with a sudden and unforeseen situation in which he was forced to make a split second decision and could not “weigh alternative courses of action” such that “he cannot reasonably be held to the same conduct as one who has had full opportunity to reflect” … . “While it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue” … . Danielle W. v Li, 2026 NY Slip Op 04821, First Dept 7-30-26

 

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THE REFEREE’S REPORT REFERRED TO UNPRODUCED DOCUMENTS RENDERING IT INADMISSBILE HEARSAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The documents upon which the report was based were not produced, rendering the report inadmissible hearsay:

… [T]he plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale should have been denied. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . However, computations based upon a review of unidentified and unproduced business records constitute inadmissible hearsay and lack probative value … .

Here, the referee’s report indicates, among other things, that “[t]he information contained herein was obtained from the books and records of plaintiff pertaining to the defendants’ loan and payment history.” However, the record does not reflect that those books and records were annexed to an affidavit of an another officer of the plaintiff’s former loan servicer. As the defendants contended in opposition to the plaintiff’s motion, inter alia, to confirm the referee’s report and in support of their cross-motion, among other things, pursuant to CPLR 4403 to reject the referee’s report, and as they contend on appeal, the referee’s computations as to the amounts due to the plaintiff for advances of taxes and insurance were based on unidentified and unproduced business records, and therefore, the referee’s assertions in those regards constituted inadmissible hearsay and lacked probative value … . Bank of N.Y. Mellon v Prestia, 2026 NY Slip Op 04735, Second Dept 7-29-26

 

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TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

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THE DERIVATIVE NEGLECT FINDING WAS BASED ON A PRIOR FINDING MOTHER NEGLECTED THREE OLDER CHILDREN; BUT THE CONDUCT WHICH WAS THE BASIS OF THE PRIOR NEGLECT FINDING WAS NOT DESCRIBED IN THE MOTION PAPERS; THE BURDEN OF PROOF, THEREFORE, NEVER SHIFTED TO MOTHER AND THE MOTION SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the burden never shifted to mother in this derivative neglect proceeding. The derivative neglect finding was based upon a prior finding mother neglected three older children. But the order in that case did not describe the conduct that resulted in the “Inadequate guardianship” finding:

… [W]e conclude that the court erred in granting the motion because petitioner’s submissions did not satisfy its initial burden to show that the subject child was derivatively neglected … . To the extent that petitioner relied on the court’s prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist … . In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother’s conduct that supported the prior finding of neglect or its surrounding circumstances … . Matter of Ty’Shawn B., 2026 NY Slip Op 04694, Fourth Dept 7-24-26

Practice Point: A motion for summary judgment seeking a derivative neglect finding cannot merely mention a prior “inadequate guardianship” finding regarding mother’s other children with no description of the underlying conduct. The moving papers must demonstrate egregious conduct which is ongoing.

 

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AT THE SUPPRESSION HEARING THE ARRESTING OFFICER TESTIFIED HIS PARTNER TOLD HIM THERE WAS PROBABLE CAUSE TO ARREST AFTER HIS PARTNER SPOKE TO THE DRIVER; THE DEFENSE CHALLENGED THE INFORMATION IMPARTED BY THE DRIVER TO THE PARTNER UNDER THE FELLOW OFFICER RULE; BECAUSE NO EVIDENCE WAS PRESENTED TO DEMONSTRATE THE PARTNER HAD THE REQUISITE LEVEL OF SUSPICION, SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion, determined the People did not present evidence at the suppression hearing justifying handcuffing the defendant after a “tinted windows” traffic stop. The officer who testified at the hearing said his partner told him there was probable cause but he was not aware of what the driver told his partner. Because the defense challenged the information under the fellow officer rule, the People were required to demonstrate the officer who spoke with the driver had the requisite level of suspicion, but no evidence on that issue was presented:

We agree with defendant that, under these circumstances, by placing him in handcuffs after directing him to exit the vehicle, the troopers transformed the traffic stop into, at minimum, a “forcible stop and detention” … , which “must be justified by some additional circumstances, such as a threat of evasive conduct . . . ; a need to transport the defendant for a showup procedure . . . ; a fear that the suspect may interfere with the execution of a search warrant . . . ; or a concern for officer safety” … .

Although … the Trooper testified that he observed an “orange pill bottle with no markings on it in the center console of the vehicle,” that alone is insufficient to justify the forcible stop and detention … . The Trooper conceded that he could not see inside the bottle and did not know what was inside. He also did not observe any other indicia of criminality and did not see defendant acting in a suspicious manner. Although a conversation took place between the Trooper and his partner, defendant challenged that information under the fellow officer rule. The People were thus required to establish at the hearing that the partner, who imparted information to the Trooper, in fact possessed the requisite level of suspicion to act … . Here, however, the Trooper’s partner did not testify, and the Trooper testified that his partner did not relay the substance of the conversation with the driver to him. We are therefore unable to infer that the Trooper received information sufficient to justify his subsequent actions … . People v Purrier, 2026 NY Slip Op 04681, Fourth Dept 7-24-26

Practice Point: This case presents another example of a defense challenge to information passed from one police officer to another in the context of a probable-cause determination at a suppression hearing. The officer who testified at the hearing relied on information from his partner who told him there was probable cause to arrest after the partner spoke with the driver.  Because of the challenge under the fellow officer rule, the People were required to demonstrate the partner had the requisite level of suspicion after speaking with the driver, but the People presented no testimony on that issue.

 

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THE DEFENSE SPECIFICALLY CHALLENGED THE RELIABILITY OF THE IDENTIFICATION OF THE DEFENDANT WHICH WAS RELAYED TO THE POLICE BY A CIVILIAN PROPERTY OWNER; THE PEOPLE FAILED TO ESTABLISH THE IDENTIFICATION WAS BASED UPON THE PROPERTY OWNER’S PERSONAL KNOWLEDGE, AS OPPOSED TO SPECULATION; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department determined the People did not establish the legality of the defendant’s arrest, granted suppression and dismissed the indictment. The defendant specifically challenged the reliability of the identification of the defendant by a civilian property owner. The People failed to demonstrate the civilian’s identification was based upon personal knowledge as opposed to speculation:

The first officer testified that the civilian property owner had identified defendant in the video as the shooter and that she had reported having interacted with him more than 100 times.

We conclude that the civilian’s basis of knowledge was not established at the hearing. “The ‘basis-of-knowledge’ prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge” … . “The basis of knowledge component . . . requires that the information provided by the informant be corroborated orthrough details sufficient in number and suggestive of, or directly related to, the criminal activity informed about” … . Although the first officer testified that the civilian property owner had previously had more than 100 interactions with defendant, the record reflects that the level of detail needed to enable the court to determine whether her identification of defendant was “more than mere speculation” is lacking … . Notably, the People never offered the supporting deposition or the video of the underlying incident at the suppression hearing, and the hearing testimony failed to provide the requisite evidence of the civilian’s “own description of underlying circumstances personally observed” … . Although police observations can provide the corroborating details required to allow a court to properly infer a basis of knowledge, no such details were offered at the hearing … . As an example, the first officer testified that he had observed defendant “half a dozen times or so” prior to defendant’s arrest, but that he could not identify defendant in the video “because the video was grainy.” As another example, the court asked the first officer, “Did [the third officer] relay to you that he had had any prior involvement with [defendant]?,” to which the first officer responded, “I did not ask him.” As a result of the lack of detail, the court was relegated to reliance upon the first officer’s conclusory statement—provided to him by the civilian property owner—that defendant was the shooter in the underlying incident—”in order to determine the reliability of the information claimed to have established probable cause” … . People v Asbury, 2026 NY Slip Op 04617, Fourth Dept 7-24-26

Practice Point: Where the police rely on information provided to them by other officers, a computer database, civilians, etc,, for probable cause, if the defense specifically challenges the reliability of the source of the information the People must demonstrate its reliability at the suppression hearing. Here the police relied on an identification of the defendant by a civilian property owner who was shown a video. The basis of the property owner’s knowledge was not demonstrated at the suppression hearing and the indictment was dismissed on appeal.

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