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PLAINTIFF WAS HIT BY A FALLING CHISEL WHILE SITTING UNDER A SIDEWALK BRIDGE AT THE WORKSITE TAKING A BREAK; THE CHISEL SHOULD HAVE BEEN SECURED AND THE SCAFFOLDING ABOVE PLAINTIFF WAS INADEQUATE TO PROTECT HIM FROM A FALLING OBJECT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this falling-object case was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was sitting underneath a sidewalk bridge on the jobsite, taking a break, when he was struck by a chisel. The chisel should have been secured and the scaffolding above plaintiff had gaps and therefore failed to provide adequate protection. Plaintiff did not have to prove where the chisel came from:

… “[I]njuries sustained while a worker was on site, although . . . on a break, come within the protections of Labor Law § 240(1)” … .

Plaintiff established that the chisel “required securing for the purposes of the undertaking” and that the scaffolding “proved inadequate” to protect him … . It is irrelevant that plaintiff did not know where the chisel fell from, or what caused it to fall, or hear anything fall, as “plaintiff is not required to show exactly how the [object] fell” … . Any alleged inconsistency concerning the location of the accident is immaterial … . Similarly, it does not matter where the chisel struck plaintiff’s body, as it is undisputed that it struck him. … [P]laintiff alleges without contradiction that the scaffolding was defective … , including the existence of gaps between the scaffolding planks. Contreras v City of New York, 2026 NY Slip Op 00612, First Dept 2-10-26

Practice Point: In a Labor Law 240(1) falling-object case, a plaintiff need not prove where the object came from.

 

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PLAINTIFF ALLEGED SHE WAS COVERED AS AN ADDITIONAL INSURED UNDER THE POLICY AND ATTACHED A CERTIFICATE OF INSURANCE TO HER COMPLAINT; A CERTIFICATE OF INSURANCE IS NOT SUFFICIENT PROOF OF THE EXISTENCE OF AN INSURANCE CONTRACT; PLAINTIFF’S COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint alleging plaintiff was an additional insured based upon the certificate of insurance should have been dismissed. A certificate of insurance does not prove the existence of an insurance contract:

Only those named as an insured or additional insured on an insurance policy are entitled to coverage … . As the party claiming coverage, plaintiff bears the burden of showing that the policy covers her … .

Supreme Court should have granted [the insurer’s] motion to dismiss the complaint because plaintiff failed to plead facts showing that she was covered under the policy. The certificate of liability insurance is insufficient to prove that plaintiff was an additional insured because “[a] certificate of insurance is only evidence of a carrier’s intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists” … . Furthermore, the certificate contains a disclaimer stating that it was “issued as a matter of information only and confers no rights upon the certificate holder” … . Itzhak v Briarwood Ins. Servs. Inc., 2026 NY Slip Op 00616, First Dept 2-10-26

Practice Point: A certificate of insurance is not proof of the existence of an underlying insurance contract. Here plaintiff relied solely on a certificate of insurance to allege she was covered under the policy as an additional insured. That was not enough to state a cause of action.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:

… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.

… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *

Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime.  People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26

Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.

Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.

 

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THE A-FRAME LADDER PLAINTIFF WAS USING WHEN HE FELL WAS DEFECTIVE AND LABOR LAW 240(1) APPLIED ON THAT GROUND ALONE; EVEN IF THE LADDER HAD NOT BEEN DEFECTIVE, LABOR LAW 240(1) WOULD STILL APPLY BECAUSE THE LADDER WOBBLED AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK; THERE IS NO EXCEPTION TO THE APPLICABILITY OF LABOR LAW 240(1) WHERE A LADDER-FALL IS PRECEDED BY AN ELECTRIC SHOCK (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was standing on an A-frame ladder when he he was shocked by a live electric wire and fell. At the time he was shocked, he felt the ladder wobble. That evidence was sufficient for summary judgment. There is no exception under Labor Law 240(1) for a fall which follows an electric shock:

… [T]he statute applies here because the ladder was defective. Plaintiff’s deposition testimony and the photographs provided clearly demonstrate that the ladder, which was the only one available for the work plaintiff was required to perform, had two bent and curved crossbeams and worn rubber feet. The general contractor’s corporate safety manager confirmed that the ladder was defective when he stated at his deposition that if he had observed a ladder with the damage depicted in the photographs, he would have replaced the ladder and taken it out of service.

Even if the ladder had been stable, this would have been no impediment to a claim under section 240 … . Plaintiff submitted evidence that the ladder was an inadequate safety device because it failed to provide adequate protection against the gravity-related risk inherent in the work he was performing. Plaintiff testified that when he removed his hand from the wires that shocked him, the ladder immediately “moved, wobbled and shifted,” establishing that it failed to adequately support and protect him from the gravity-related risk … . Szczesiak v Ery Tenant LLC, 2026 NY Slip Op 00600, First Dept 2-5-26

Practice Point: Plaintiff fell from a ladder which wobbled after he received an electric shock. The fact that the ladder wobbled was proof it was not an adequate safety device. The electric shock was not relevant to the applicability of Labor Law 240(1).​

 

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ONE DEFENDANT PROVED HE DID NOT RESIDE AT THE ADDRESS WHERE SERVICE OF PROCESS WAS MADE; AND PLAINTIFF FAILED TO PROVE THE PROCESS SERVER EXERCISED “DUE DILIGENCE” IN ATTEMPTING TO SERVE THE OTHER DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the default judgments against De La Cruz-Ramos and Mosquea should have been vacated. De La Cruz-Ramos proved he did not reside at the address where service of process was made. And plaintiff did not prove the process server exercised due diligence in serving Mosquea before resorting to “nail and mail.” The attempts to serve Mosquea were all made during working hours:

De La Cruz-Ramos [submitted] his own affidavit averring that he had moved from the address where service was made, as well as a lease confirming that he had moved before the date of service … . * * *

Mosquea contends that the service was defective because the process server did not exercise “due diligence” in seeking to effectuate service on defendant before resorting to nail-and-mail service (CPLR 308[4]). Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at her residence on three different occasions, at different times of day … . As Mosquea argues, however, all of the dates of attempted personal service upon him were during the work week and during normal business hours in the same afternoon window. Thus, plaintiff did not establish the due diligence necessary to resort to nail and mail service … . Unitrin Safeguard Ins. Co. v Della-Noce, 2026 NY Slip Op 00601, First Dept 2-5-26

Practice Point: Here the process server made three attempts to serve a defendant at the same time of day, during work hours. The process server, therefore, did not exercise “due diligence” before resorting to nail and mail.

 

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DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS WET-FLOOR SLIP AND FALL CASE; THEY FAILED TO PROVE THERE WAS A STORM IN PROGRESS, THEY FAILED TO PROVE THEY TOOK REASONABLE PRECAUTIONS TO REMEDY THE WET FLOOR, AND THEY FAILED TO PROVE THEY DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this slip and fall case. The slip and fall was related to tracked-in water in the lobby of defendants’ premises. The court noted what defendants failed to prove, i.e., there was a “storm in progress,” they took reasonable precautions to remedy the wet floor, and they didn’t have constructive or actual notice of the condition. The decision provides insight into how those issues can be proven:

Defendants failed to demonstrate that they are protected from liability for plaintiff’s accident by the storm in progress rule. They did not submit any weather reports or expert opinions to show an ongoing storm at the time of plaintiff’s fall, and plaintiff’s conclusory, affirmative response when asked whether it was “snowing when [her] accident happened” is insufficient to show that a storm was in progress … .

… [T]he superintendent … could not recall whether he placed … signs or dry-mopped on the morning of plaintiff’s accident or if he even worked that day. In fact, there was no evidence that a caution sign was placed in the lobby or that anyone had mopped the area prior to the accident, or throughout that day … . Although defendants were not obligated to continuously mop moisture tracked onto the lobby floor by people entering from outside or to cover the entire floor with mats, here plaintiff claims that her accident was caused by a lack of matting on the portion of the lobby between the entrance and the stairway … . …

Defendants … failed to demonstrate when they last inspected the lobby on the day of the accident … . … [T]hey failed to produce a witness to testify that no complaints about the location of plaintiff’s fall were received before the accident and that there were no prior incidents in that area before plaintiff fell … . * * * … [T]he superintendent, who could not recall if he worked on the day of plaintiff’s accident, testified that he could not recall if anyone had complained to him about water on the floor of the lobby and that he had “no idea” about the procedure for tenants to make complaints. Rodney v 840 Westchester Ave, LLC, 2026 NY Slip Op 00435, First Dept 1-29-26

Practice Point: Consult this decision for insight into what evidence a defendant in a wet-floor slip and fall case should present to prove (1) the “storm in progress” defense, (2) actions were taken to remedy the wet floor, (3) defendant’s lack of constructive notice of the condition, and (4) defendant’s lack of actual notice of the condition.

Practice Point: Note that the plaintiff’s testimony that it was snowing at the time of her fall was not sufficient to prove defendants’ “storm in progress” defense.

 

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IN THIS HOTEL-ROOM SLIP AND FALL CASE, THE OUT-OF-POSSESSION LANDLORD WAS NOT OBLIGATED BY CONTRACT OR COURSE OF CONDUCT TO REPAIR DANGEROUS CONDITIONS AND THE LESSEE OF THE HOTEL DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE WATER ON THE BATHROOM FLOOR IN PLAINTIFF’S ROOM; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the out-of-possession landlord and the lessee of the hotel where plaintiff slipped and fell on water on the bathroom floor were entitled to summary judgment. The out-of-possession landlord was not bound by contract or course of conduct to repair a dangerous condition. The lessee demonstrated it had no constructive or actual notice of the condition:

“‘An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'” … . “[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . * * *

Here, the moving defendants established, prima facie, that New Ram [the lessee] did not create or have constructive notice of the alleged dangerous condition …. [T]he moving defendants submitted … plaintiff’s deposition transcript indicating that the plaintiff did not see any water on the bathroom floor prior to his fall. The plaintiff testified that he showered in the bathroom at approximately 6:00 p.m., after which there was no water on the bathroom floor. Thereafter, he went to sleep and awoke at approximately 1:00 a.m. to use the bathroom, where he fell and then first noticed the leak. The plaintiff also testified that he never noticed or reported any leaks or water on the bathroom floor prior to this incident and that he never before complained about water on the bathroom floor or leaks … .

The moving defendants also submitted a transcript of the deposition testimony of [the lessee’s] former general manager, who testified that there had never before been reports of a water leak from one room to another, nor had there been reports of any other slip and falls in the bathrooms of the hotel. She further stated that any such report would have been recorded in a log, and no such report existed. Additionally, another hotel worker averred in an affidavit that he was not aware of any incidents in the hotel where water leaked from one room to another. Gibbs v New Ram Realty, LLC, 2026 NY Slip Op 00349, Second Dept 1-28-26

Practice Point: Here the out-of-possession landlord was not obligated to repair dangerous conditions by contract or course of conduct and the lessee of the property demonstrated a lack of constructive and actual notice of the condition which allegedly caused plaintiff’s slip and fall. The property defendants were entitled to summary judgment.

 

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ALTHOUGH PLAINTIFF IN THIS INTERSECTION ACCIDENT CASE DID NOT HAVE A STOP SIGN AND HAD THE RIGHT-OF-WAY, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF DRIVER COULD HAVE AVOIDED THE COLLISION WITH DEFENDANT WHO HAD ENTERED THE INTERSECTION AFTER STOPPING AT A STOP SIGN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs in this intersection traffic accident case did not not demonstrate plaintiff driver, who had the right-of-way (no stop sigh), was not at fault. Defendant testified he stopped at a stop sign, looked both ways, proceeded slowly into the intersection and was half-way through when the rear of his car was struck by the plaintiff driver. Although not specifically discussed, it appears that testimony raised a question of fact whether plaintiff exercised reasonable care to avoid the collision:

“There can be more than one proximate cause of an accident” … . Hence, “[a] defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard” … . “As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law” … . “Even though the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection” … . Ficalora v Almeida, 2026 NY Slip Op 00346, Second Dept 1-28-26

Practice Point: Having the right-of-way does not necessarily guarantee summary judgment in an intersection traffic accident case. A driver with the right-of-way is obligated to use reasonable care to avoid a collision with a vehicle already in the intersection.​

 

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AT THE FORECLOSURE TRIAL, THE BANK DEMONSTRATED THE RPAPL 1304 NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT BY CERTIFIED MAIL BUT FAILED TO PROVE THE NOTICE WAS ALSO SENT BY REGULAR MAIL; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of mailing of the RPAPL 1304 notice in this foreclosure action was insufficient:

“A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened” … . Here, although the certified mailing receipt bearing the defendant’s signature upon delivery was sufficient to establish the mailing of one notice by certified mail … , the label submitted as proof of the regular first-class mailing, with no postage, no address of intended recipient, “no indicia of actual mailing such as postal codes and . . . [no] mailing receipts or tracking information” … , was insufficient to establish that the notice was actually mailed by regular first-class mail … . Since the plaintiff also failed to submit “proof of a standard office procedure designed to ensure that items are properly addressed and mailed,” or testimony “from someone with personal knowledge that the mailing of the RPAPL 1304 notice actually happened” … , the plaintiff failed to establish its strict compliance with RPAPL 1304 at the nonjury trial … . Bank of N.Y. Mellon v Robustello, 2026 NY Slip Op 00340, Second Dept 1-28-26

Practice Point: The RPAPL 1304 notice of foreclosure requirements must be strictly complied with. Here, at trial, the bank proved the RPAPL 1304 notice was sent by certified mail and received by the defendant, but the bank failed to prove the RPAPL 1304 notice was also sent by regular mail. The complaint was dismissed.

 

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THE INSTALLATION OF A TEMPORARY PEDESTRIAN TRAFFIC SIGNAL AT AN INTERSECTION IS NOT SUBJECT TO THE REQUIREMENT THAT A MUNICIPALITY HAVE WRITTEN NOTICE OF A DEFECTIVE CONDITION; THE COMPLAINT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS NO “WRITTEN NOTICE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this pedestrian-vehicle accident case should not have been dismissed on the ground the defendant city did not have written notice of the allegedly negligently designed temporary pedestrian signal at an intersection. The written notice requirement does not apply to the failure to maintain or install pedestrian signals. In addition, the expert evidence created a question of fact whether the city created the defect through an affirmative act of negligence:

… [T]he requirement that the municipality have prior written notice of the alleged defect before it can be held liable for injuries arising from the defect does not apply here (Administrative Code of City of NY § 7-201[c][2]). The prior written notice requirement applies to physical defects such as holes or cracks in the street, not the failure to maintain or install pedestrian signals … .

Neither plaintiff’s expert nor defendants’ expert, both professional engineers, cite a standard or regulation setting forth specific height requirements for temporary pedestrian signals. In addition, the experts disagree as to whether the temporary pedestrian signal was installed at a proper height. …

An issue of fact also exists as to whether the height or the placement of the signal proximately caused plaintiff’s accident. Although defendants’ expert opined that the temporary pedestrian signal would have been within plaintiff’s field of view, plaintiff testified that he remembered looking for a signal and not seeing one. Plaintiff’s testimony, together with the conflicting expert opinions as to whether the pedestrian signal was installed at a proper height, is sufficient to raise a triable issue of fact as to the City’s negligence … . Harelick v De La Cruz Lora, 2026 NY Slip Op 00315, First Dept 1-27-26

Practice Point: The requirement that a city have written notice of a dangerous condition before liability for an injury will attach applies to physical defects like holes or cracks in the street. It does not apply to an allegedly negligently designed temporary pedestrian traffic signal.

 

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