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PLAINTIFF WAS TAKING DOWN A PLYWOOD FENCE WHEN A PIECE OF PLYWOOD FELL AND STRUCK HIM ON THE HEAD; PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF THE INCIDENT WAS ELEVATION-RELATED; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was tasked with taking down a plywood fence when a piece of plywood struck his head. The Second Department held that plaintiff did not present sufficient evidence demonstrating the incident was elevation-related:

With respect to “falling object” cases, “Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured” … . A plaintiff “must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking” … .

Here, the plaintiff failed to eliminate all triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1) … . The plaintiff failed to establish his height or the height and weight of the plywood sheet that struck him … . Further, the plaintiff failed to eliminate triable issues of fact as to how the accident occurred and whether, under the circumstances of this case, this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or even expected … . Joya v E 31 Partners, LLC, 2025 NY Slip Op 04461, Second Dept 7-30-25

Practice Point: Here plaintiff was taking down a plywood fence when a piece of plywood “fell” and struck him on the head. The Second Department held plaintiff did not present sufficient evidence to demonstrate the accident was “elevation-related.” Therefore he was not entitled to summary judgment. Before moving for summary judgment consult the statutory requirements for a violation of Labor Law 240(1).​

 

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THE JUDGE SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFFS’ COUNSEL TO INFORM DEFENDANTS’ FORMER EMPLOYEES THAT COUNSEL’S INTERESTS ARE ADVERSE TO THEIRS AND TO RECOMMEND THE FORMER EMPLOYEES RETAIN COUNSEL BEFORE ANY DISCUSSION WITH PLAINTIFFS’ COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this action alleging sexual abuse of the plaintiffs in the steam rooms of defendants’ fitness clubs should not have issued a protective order concerning interviews of defendants’ former employees by plaintiffs’ counsel. The order precluded plaintiffs’ counsel from communicating with any former employees without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s interests and recommending that the former employees retain counsel before continuing the discussion:

Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3103 for an order precluding the plaintiffs’ counsel from communicating with any former employees of Equinox without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s clients’ interests and recommending that the former employees retain counsel before continuing the discussion. The defendants failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order … . The defendants’ allegations of prejudice in the absence of a protective order were both conclusory and speculative … . G.B. v Equinox Holdings, Inc., 2025 NY Slip Op 04452, Second Dept 7-30-25

Practice Point: Here a protective order restricting communications between plaintiffs’ counsel and defendants’ former employees was reversed because the need for the order was not adequately demonstrated by conclusory and speculative allegations.

 

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HEARSAY STATEMENTS IN A MEDICAL RECORD ARE ADMISSIBLE IN A PERSONAL INJURY ACTION WHEN (1) THE STATEMENTS ARE GERMANE TO DIAGNOSIS AND TREATMENT AND (2) THE STATEMENTS CAN BE ATTRIBUTED TO THE PLAINTIFF (SECOND DEPT).

The Second Department, affirming the denial of plaintiff’s summary judgment motion, in a full-fledged opinion by Justice Connolly, determined that hearsay statements attributed to plaintiff in a medical record were admissible and created a question fact in this Labor Law 240(1) ladder-fall case. Plaintiff alleged he was knocked off an A-frame ladder by a piece of sheetrock. However, the medical record indicated he was on a ladder lifting sheetrock when he felt a pull in his lower back and shoulder. The opinion is comprehensive and offers guidance to the admissibility of hearsay statements in a medical record:

The first page of the Precision Pain medical records contains, among other things, the following statement: “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.” On the third and fourth pages, the following three statements appear: “Incident patient described the competent medical cause of this injury? YES. “Are the patient’s complaints consistent with his/her history of injury? YES. “Is the patient’s history of the injury consistent with my objective findings? YES.” * * *

Because we find that the challenged statement was germane to medical diagnosis and treatment, we conclude that it was part of Khaimov’s [the doctor’s] regular business practice to record the challenged statement.

Nevertheless, this conclusion “satisfies only half the test” … . Each participant in the chain producing the challenged statement in the Precision Pain medical records, “from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . Firsthand accounts from the patient to the medical provider are presumptively reliable, as the patient has a clear motivation to report accurately … . However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . * * *

Considering both the plaintiff’s deposition testimony and the statements on the third and fourth pages of the Precision Pain medical records, [defendant] sufficiently established that the plaintiff was the source of the information in the challenged statement … . Pillco v 160 Dikeman St., LLC, 2025 NY Slip Op 04495, Second Dept 7-30-25

Practice Point: Consult this opinion for a comprehensive discussion of the two-prong test for the admissibility of hearsay statements in a medical record.

 

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IN THIS FORECLOSURE ACTION, THE REFEREE’S AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR ALL THE DOCUMENTS RELIED UPON; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a proper foundation was not laid for the documents supporting the referee’s report:

In computing the amount due, the referee relied upon an affidavit of merit from an authorized signer of PNC Bank, National Association (hereinafter PNC). Although the referee stated in his report that PNC was the plaintiff’s servicer, the documents in the record indicate that the plaintiff and PNC merged into one entity. Although the authorized signer stated in her affidavit that she was personally familiar with the record-keeping practices and procedures of PNC, her employer, she did not state that “she was personally familiar with the record-keeping practices and procedures” of the plaintiff … or that the records of any other entity, such as the plaintiff or a prior loan servicer, “were provided to [PNC] and incorporated into [PNC’s] own records, that [PNC] routinely relied upon such records in its business, or that she had personal knowledge of business practices and procedures of any other relevant entity” … . Consequently, the affidavit did not provide a proper foundation for the business records allegedly submitted with the affidavit. Further, although business records are included in the record, the referee stated that the documents submitted by the plaintiff were the authorized signer’s affidavit “and annexed exhibit: copies of Mortgage and Note,” and the referee did not refer to the business records. National City Mtge. Co. v Wercberger, 2025 NY Slip Op 04488, Second Dept 7-30-25

Practice Point: Consult this decision for an example of common flaws in the evidentiary foundation for documents submitted in support of a referee’s report in a foreclosure proceeding.

 

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CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).

The Fourth Department, affirming the convictions, explained the co-conspirator exception to the hearsay rule. A two-justice partial dissent argued there was insufficient evidence of defendant’s guilt of murder, attempted murder and assault as an accessory:

…[T]he court properly admitted in evidence the text messages sent by the female codefendant to defendant’s cell phone pursuant to the coconspirator exception to the hearsay rule. ” ‘A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule’ ” … . Such a declaration may be admitted only where the People have established a prima facie case of conspiracy ” ‘without recourse to the declarations [of that coconspirator]’ ” … . “The prima facie case of conspiracy does not need to be established before the coconspirator’s statements are admitted in evidence, so long as ‘the People independently establish a conspiracy by the close of their case’ ” … . People v Brown, 2025 NY Slip Op 04331, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the application of the co-conspirator exception to the hearsay rule.

 

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THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People:

… [T]he People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the alleged assault, inasmuch as they acted in good faith and with due diligence in an attempt to recover the report and footage. We reject that contention. * * *

… [D]espite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. We conclude under the circumstances presented here that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC [certificate of compliance] and, thus, the court properly determined that the initial COC was improper and struck the statement of readiness as illusory … .

From the dissent:

… [W]e agree with the majority’s conclusion that the certificate of compliance in this case was invalid … , we cannot agree with the majority’s further conclusion that the People could be charged with more than six months of speedy trial time while defendant’s omnibus motion remained pending. In our view, it cannot be disputed that the omnibus motion remained pending before Supreme Court, i.e., “under consideration” (CPL 30.30 [4] [a]), at least in part, during the relevant time frame inasmuch as the portion of the motion seeking to compel production of certain materials pertaining to a welfare check … was neither decided by the court nor withdrawn by defendant before defendant moved to dismiss the indictment. Because we conclude that defendant’s omnibus motion remained pending before the court until defendant moved to dismiss the indictment on speedy trial grounds, we further conclude that all of the time that elapsed during that period was excludable, and that the People could not be charged with more than six months of statutory speedy trial time as a result … . People v Ernst, 2025 NY Slip Op 04329, Fourth Dept 7-25-25

Practice Point: Consult this decision for a discussion of the meaning of “due diligence” in the context of the People’s response to discovery demands.

 

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THE JUDGE FAILED TO ADEQUATELY CONSIDER FATHER’S ARGUMENTS OPPOSING THE CHILD’S RELOCATION WITH MOTHER AND FAILED TO MAKE FINDINGS OF FACT IN SUPPORT OF THE AWARD OF SOLE CUSTODY TO MOTHER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court in this modification of custody proceeding and remitting the matter, determined the judge failed to consider father’s arguments opposing relocation with the mother, and failed to make findings of fact to support awarding sole custody to mother:

… [T]he court failed “to consider and give appropriate weight to all of the factors that may be relevant to the determination” … . Although the court properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts given, among other things, the mother’s family support system there, it failed to consider or evaluate the father’s reasons for opposing the relocation. Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country … . Indeed, the father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child. He also testified about an incident where the mother took the child’s passport from the father without his consent and in violation of the stipulated order. In short, the court failed to consider whether the father had “a good faith basis for opposing a requested move,” which “is a factor bearing on a relocation determination” … .

… [T]he court failed to make any factual findings to support the award of sole custody—both legal and physical—to the mother … . Effectively, the court awarded the mother sole custody of the child on the basis of its determination on the petition insofar as it sought permission to relocate the child. However, it is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child … . Crucially, as with its analysis on the issue of relocation, the court, in awarding the mother sole custody, did not consider the father’s stated concerns about the mother’s immigration status and whether she intended to remove the child from the country. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Eddaoudi v Obtenu, 2025 NY Slip Op 04430, Fourth Dept 7-25-25

Practice Point: Consult this decision for some insight into the findings an appellate court needs to consider an appeal in a modification of custody proceeding. A judge’s failure to consider a party’s argument and failure to make findings of fact in support of the award of custody renders an appellate review impossible.

 

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SHANE, A CO-DEFENDANT WITH HIS PARENTS WITH WHOM HE LIVED, WAS NOT DISQUALIFIED FROM ACCEPTING SERVICE ON BEHALF OF HIS PARENTS DUE TO A CONFLICT OF INTEREST; THE ACTION AGAINST THE PARENTS SHOULD NOT HAVE BEEN VACATED BASED ON A LACK OF PERSONAL JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the evidence did not support the finding that Shane, who was living with his parents when he was served with process on behalf of his parents, was not a person of suitable age and discretion due to a conflict of interest with his parents. Shane was a co-defendant along with his parents. The parents were granted vacatur under CPLR 5015(a)(4) on the ground the court lacked personal jurisdiction over them:

“A person would not be considered a person of suitable age and discretion where their interests in the proceeding were sufficiently adverse to the party for whom they were accepting service” … . Furthermore, “[g]ood faith is implicit in the spirit of the statutory scheme. If a plaintiff knows, or should know, that service according to [CPLR 308 (2)] will not afford notice, then, by definition, it is not reasonably calculated to afford notice, and is constitutionally infirm” … .

… [T]here is no evidence in the record to support a determination that plaintiff was aware, or should have been aware, of any alleged conflict between Shane and the parent defendants. We cannot conclude that Shane had a conflict of interest with the parent defendants and, therefore, was not a person of suitable age and discretion, merely because he is a codefendant … . Moreover, on the record before us, we note that this is not a case where plaintiff can be charged with any knowledge that service upon Shane with respect to his parents might be deficient … . Thus, based on the evidence adduced at the traverse hearing, we conclude that plaintiff established that Shane was a person of suitable age and discretion for purposes of serving his parents … . Seebald v Spoonley, 2025 NY Slip Op 04324, Fourth Dept 7-25-25

Practice Point: The fact that a person is a co-defendant does not render that person unqualified to accept service on behalf of other defendants. Here the person served, Shane, a co-defendant in the action, accepted service on behalf of his parents with whom he lived. It was not demonstrated at the traverse hearing that Shane had interests sufficiently adverse to those of his parents to render the service on the parents constitutionally infirm. There was no evidence the plaintiff was aware service upon Shane would be deficient with respect to service on the parents.

 

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THE MAJORITY CONCLUDED PLAINTIFF IN THIS ASBESTOS-EXPOSURE CASE PROVED GENERAL AND SPECIFIC CAUSATION THROUGH EXPERT TESTIMONY; THE DISSENT ARGUED NEITHER CAUSATION ELEMENT WAS SUPPORTED BY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department, affirming the denial of the defense motion to set aside the verdict in this asbestos-exposure case, determined plaintiff, through expert testimony, demonstrated both general and specific causation. The dissent found the causation evidence insufficient:

… [I]t is well established that, in cases involving exposure to asbestos or other toxins, ” ‘an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)’ ” … . ” ‘[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community’ ” … . Indeed, “there may be several ways” for an expert to demonstrate causation, but “any method used must be ‘generally accepted as reliable in the scientific community’ ” … .

From the dissent:

I do not believe that Joseph A. Skrzynski (plaintiff) established general causation, i.e., that exposure to chrysotile asbestos as a component of friction products can cause peritoneal mesothelioma, nor did plaintiff meet his burden of proof on specific causation, i.e., that he was exposed to sufficient levels of chrysotile asbestos to cause peritoneal mesothelioma. Thus, in my view, there is “no valid line of reasoning and permissible inferences [that] could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial,” and the verdict should be set aside on the ground that it is not supported by legally sufficient evidence … . Skrzynski v Akebono Brake Corp., 2025 NY Slip Op 04322, Fourth Dept 7-25-25

Practice Point: Consult this decision and the dissent for insight into the proof requirements for general and specific causation in a toxic torts action. Plaintiff must prove the toxin (asbsestos in this case) is capable of causing the disease (mesothelioma in this case) and the toxin in fact caused plaintiff’s disease.

 

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PLAINTIFF IN THIS MED MAL ACTION SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EVIDENCE DECEDENT SHOULD HAVE BEEN GIVEN A BLOOD TRANSFUSION ON THE GROUND THE ISSUE WAS NOT PLED AND PLAINTIFF’S REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WHEN THE DEFENSE INDICATED IT WAS NOT GOING TO CALL THREE DEFENDANTS SHOULD HAVE BEEN GRANTED; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial in this medical malpractice action after a defense verdict, determined plaintiff’s should not have been precluded from presenting evidence that decedent should have received a blood transfusion in the emergency room on the ground the issue had not been pled and the judge should have given the missing witness jury instruction after the defense indicated it was not going call three defendants:

… [P]laintiff from the outset alleged that the ED [emergency department] defendants failed to act upon complaints, signs, symptoms, and diagnostic testing, and such allegations were neither new nor would have been a surprise to the ED defendants because they had responded during summary judgment motion practice to the allegation that they should have acted upon the drop in hemoglobin and hematocrit levels. …

… [T]he court abused its discretion in failing to give a missing witness charge for defendants Patel, Chan, and Alexander. A trier of fact in a civil proceeding may draw the strongest inference that the opposing evidence permits against a party who fails to testify … . This type of instruction, which is commonly referred to as a missing witness charge, “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” … . In seeking use of this charge, “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify” … . Once the foregoing is established, the burden shifts to the party opposing the charge “to account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate” … . The opposing party’s burden can be met by demonstrating, inter alia, that “the testimony would be cumulative to other evidence” … . Heinrich v Serens, 2025 NY Slip Op 04318, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into when the court should give the missing witness jury instruction. Here in the med mal case the defense notification that it was not going to call three defendants as witnesses justified plaintiff’s request for the instruction. Under the facts, the request should have been granted.​

 

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