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THERE WAS NO EVIDENCE DEFENDANT, WHO WAS FOLLOWING THE SHOOTER’S CAR, WAS AWARE THE SHOOTER INTENDED TO KILL A RIVAL GANG MEMBER, OR EVEN AWARE THE SHOOTER WAS ARMED; THEREFORE THE CONSPIRACY TO COMMIT MURDER CHARGE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant’s motion for a trial order of dismissal should have been granted. Defendant was following the shooter’s car when the shooter shot and killed a member of a rival gang. There was no evidence defendant knew the shooter intended to kill or even that the shooter was armed. Therefore the evidence did not demonstrate that defendant shared the shooter’s intent to kill:

While the evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members, it failed to establish that the defendant entered into a conspiracy with the goal of committing murder in the second degree … . The People failed to present direct or circumstantial evidence establishing that the defendant was aware that Kelson or Oliveras were armed or had the intent to commit murder or that the defendant, in fact, joined a conspiracy with the goal of committing murder … . For the same reasons, the evidence was insufficient to establish that the defendant believed that he was rendering aid to a person who intended to commit murder. People v Hewitt, 2026 NY Slip Op 03184, Second Dept 5-20-26

Practice Point: Consult this decision for insight into the proof necessary for a conspiracy-to-commit-murder conviction. There must be evidence the defendant shared the killer’s intent, not the case here.

 

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THE LABOR LAW LIABILITY EXEMPTION FOR OWNERS OF ONE AND TWO FAMILY HOMES DOES NOT APPLY WHERE THE WORK HAS A COMMERCIAL PURPOSE, I.E., RENOVATION OF THE PROPERTY FOR SALE OR RENTAL; HERE THE DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK WAS FOR A COMMERCIAL PURPOSE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against the owner of a one or two-family dwelling should not have been dismissed on the ground that owners of one and two-family dwellings who do not control the work, are exempt form Labor Law liability. The exemption depends on whether the work serves a residential or commercial purpose. Here, without describing the facts, the Second Department held there was a question of fact about whether the work served a residential or commercial purpose:

Labor Law §§ 240(1) and 241(6) impose nondelegable duties upon property owners to comply with certain safety practices for the protection of workers engaged in certain activities. Both statutes exempt from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” (id. §§ 240[1]; 241[6]). However “‘[r]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose'” … . Where the property serves both residential and commercial purposes, “[a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … .

Here … the defendants failed to eliminate triable issues of fact as to whether they were entitled to the homeowner’s exemption to Labor Law §§ 240(1) and 241(6), including whether the premises had a commercial purpose and whether the work the plaintiff performed related to a commercial purpose of the premises … . Moreno v Hossain, 2026 NY Slip Op 03159, Second Dept 5-20-26

Practice Point: The exemption from Labor Law liability for owners of one and two-family homes does not apply when the purpose of the work is commercial, renovation for sale or rental, for example.

 

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THE SCAFFOLD FROM WHICH PLAINTIFF FELL HAD NO SAFETY RAILINGS AND THE SCAFFOLD WOBBLED AND COLLAPSED BECAUSE OF THE KICKBACK FROM A HAMMER DRILL PLAINTIFF WAS USING; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Labor Law 240(1) action was entitled to summary judgment. Plaintiff demonstrated the scaffold from which he fell did not have safety railings and the scaffold wobbled and collapsed because of the kickback from a hammer drill he was using:

… [T]he plaintiff established a violation of Labor Law § 240(1) through his deposition testimony that he was injured when he fell from a scaffold that lacked safety rails and that he was not otherwise provided an appropriate safety device. The plaintiff further testified that the kickback from the hammer drill he was using caused the scaffolding to wobble and collapse, proximately causing both his fall and his subsequent injuries. Thus, the plaintiff established, prima facie, that the defendants violated Labor Law § 240(1), and that this violation was a proximate cause of his injuries … . Correa v NY Developers & Mgt., LLC, 2026 NY Slip Op 03143, Second Dept 5-20-26

Practice Point: A fall from a scaffold with no safety railings warrants summary judgment under Labor Law 240(1); a fall from a scaffold which wobbles and collapses because of the kickback from a hammer drill similarly warrants summary judgment under Labor Law 240(1).​

 

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THE JURY RENDERED A VERDICT IN FAVOR OF PLAINTIFF, FINDING THAT DEFENDANT UNDULY INFLUENCED DECEDENT TO NAME HIM AS THE SOLE BENEFICIARY OF TWO BROKERAGE ACCOUNTS; THE CONCLUSORY AND SPECULATIVE PROOF OF UNDUE INFLUENCE DID NOT SUPPORT THE VERDICT; DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s post-verdict motion for judgment as a matter of law (CPLR 4401) dismissing the complaint should have been granted. Plaintiff alleged defendant unduly influenced the decedent to remove plaintiff as a beneficiary of two brokerage accounts and name defendant as the sole beneficiary. The court explained the shifting burdens of proof:

“‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In determining whether the defendant has met this burden, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial” … .

“Generally, the burden of proving undue influence rests with the party asserting its existence” … . “Where, however, the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence” … . “‘In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence'” … .

… [T]he plaintiff did not establish that a confidential relationship existed between the decedent and the defendant … . * * *

As a result, the burden of proving undue influence remained upon the plaintiff … . * * *

… [P]laintiff presented only conclusory and speculative evidence that the defendant exercised undue influence over the decedent … . “‘[A] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized'” … . Collins v Denaro, 2026 NY Slip Op 03142, Second Dept 5-20-26

Practice Point: Consult this decision for insight into  the shifting burdens of proof applied to a motion for a judgment as a matter of law made by a defendant after a plaintiff’s verdict. Here the appellate court determined the conclusory and speculative evidence did not support the jury’s verdict.

 

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IF A LADDER IS NOT SECURED AND IT MOVES, IRRESPECTIVE OF WHETHER IT MOVES BEFORE OR AFTER PLAINTIFF LOSES HIS BALANCE, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IS WARRANTED; PLAINTIFF’S PURPORTED STATEMENT IN AN UNCERTIFIED MEDICAL RECORD WHICH WAS NOT GERMANE TO TREATMENT WAS INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the fact that the ladder was not secured and moved warranted summary judgment on the Labor Law 240(1) cause of action, and (2) plaintiff’s purported remark which was included in an uncertified medical record and was not germane to treatment was inadmissible:

Plaintiff’s testimony that he fell because he lost his balance and the ladder on which he was standing shook established his prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Contrary to the motion court’s conclusion, “[i]t is irrelevant whether plaintiff initially lost his balance before or after the ladder [shook] because . . . the ladder failed to remain steady under plaintiff[ ] . . . as he performed his work” … . Nor is this “a case where an issue of fact is raised as to whether plaintiff simply lost his balance or footing while working on a properly secured ladder. Indeed, plaintiff’s fall was directly related to the work that he was performing, as opposed to his own misstep” … . “Defendants were obligated to ensure that the ladder was secured to something stable” … . “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240 (1)”  … . …

Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. The only evidence on which defendants relied was a recorded statement purportedly made by plaintiff after his accident that appears on a single page from his medical records. However, not only was the medical record uncertified and, therefore, inadmissible, but plaintiff’s description of the accident in that statement was not germane to his diagnosis or treatment … . Diaz v Boston Props., Inc., 2026 NY Slip Op 03114, First Dept 5-19-26

​Practice Point: Ladders which are not secured to something stable violate Labor Law 240(1).

 

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PLAINTIFF WAS INJURED WHEN A GRINDER WITH NO GUARD KICKED BACK; THE ALLEGATION PLAINTIFF WAS TOLD TO USE A SLEDGEHAMMER, NOT THE GRINDER, DID NOT RAISE A QUESTION OF FACT; A SLEDGEHAMMER IS NOT A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff was injured when a grinder with no guard kicked back. The allegation that plaintiff was told to use a sledgehammer, not the angle grinder, did not raise a question of fact:

Plaintiff established prima facie entitlement to summary judgment as to liability on his Labor Law § 241(6) claim insofar as that claim was predicated on a violation of Industrial Code § 23-1.5(c)(3), which mandates that equipment in use shall be kept sound and operable and that damaged equipment shall be immediately repaired, restored, or removed from the job site. …

… [E]ven if plaintiff was negligent by using the grinder instead of the sledgehammer, this at most constitutes comparative negligence, which is insufficient to defeat plaintiff’s motion … .

To the extent that [defendant] argues that plaintiff was recalcitrant in ignoring the alleged instructions to use a sledgehammer and to not use an angle grinder, this is insufficient to raise a triable issue of fact. … [E]ven if the defense were to apply to a Labor Law § 241(6) claim … it has no application where, as here, no adequate safety devices were provided because a sledgehammer is not a safety device.  Terron-Alcantara v Charlie’s Real Estate LLC, 2026 NY Slip Op 03091, First Dept 5-14-26

Practice Point: Comparative negligence does not defeat a Labor Law 240(1) cause of action.

Practice Point: Here, the allegation plaintiff was told to use a sledgehammer, not the unsafe grinder, did not raise a question of fact on the Labor Law 241(6) cause of action.

 

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HERE THE “RENEWED” SUMMARY JUDGMENT MOTION WAS BASED ON EVIDENCE WHICH WAS AVAILABLE FOR THE FIRST MOTION; THE “RENEWED” MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s renewed motion for summary judgment should not have been granted; it was based on evidence which was available for the first motion:

… “[S]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification” … . In support of the renewed motion for summary judgment, plaintiff presented an affirmation from Joseph DeCiutiis, a senior vice president at a title insurance company who represented that his company had determined that a secretary certificate of authority for the sale of the subject real property was “insurable authorization for the sale.” While the DeCiutiis affirmation is dispositive of the issue of fact identified by this Court in Apple Bank I with respect to plaintiff’s entitlement to summary judgment, plaintiff offers no reason why it could not have obtained a similar affirmation in support of its first summary judgment motion. Such evidence “was clearly available to [plaintiff] earlier, and thus should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion” … .  Apple Bank for Sav. v Prime Rok Real Estate LLC., 2026 NY Slip Op 03057, First Dept 5-14-26

Practice Point: A “successive” summary judgment motion which is based on evidence which could have been included in the initial motion will be denied.

 

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ALTHOUGH PLAINTIFF’S EXPERT WAS NOT BOARD CERTIFIED IN EMERGENCY MEDICINE, THE EXPERT SET FORTH A SUFFICIENT FOUNDATION FOR THE OPINION; THE HOSPITAL DID NOT DEMONSTRATE IT COULD NOT BE HELD VICARIOUSLY LIABLE FOR TREATMENT BY AN INDEPENDENT PHYSICIAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s medical expert need not be board certified in emergency medicine to be qualified to offer an opinion. The hospital did not demonstrate it could not be held vicariously liable for the care provided by an independent physician:

Contrary to the defendants’ contention, the plaintiffs’ expert was qualified to offer an opinion despite not being board certified in emergency medicine. “‘A physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge . . . [or] expertise goes to the weight and not the admissibility of the testimony'” … . Here, the plaintiffs’ expert set forth a sufficient foundation for his or her opinion, based on his or her clinical experience and familiarity with the applicable standards of care … . …

… [G]enerally, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient … . “However, an exception to the rule that a hospital may not be held vicariously liable for the treatment provided by an independent physician applies where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing, or a nonemployee physician otherwise acted as an agent of the hospital or the hospital exercised control over the physician” … . Here, the defendants failed to demonstrate, prima facie, that [the hospital] was free from vicarious liability for [plaintiff’s] care and treatment in its emergency department as a matter of law … . Valitutto v Staten Is. Univ. Hosp., 2026 NY Slip Op 03020, Second Dept 5-13-26

Practice Point: Here plaintiff’s expert was qualified to offer an opinion despite not being board certified in emergency medicine.

Practice Point: Here the hospital did not demonstrate it could not be held vicariously liable for treatment by an independent physician.

 

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DEFENDANT’S ALLEGATION PLAINTIFF’S VEHICLE STOPPED SUDDENLY FOR NO APPARENT REASON DID NOT DEFEAT SUMMARY JUDGMENT ON LIABILITY IN THIS REAR-END COLLISION CASE; HOWEVER PLAINTIFF’S COMPARATIVE NEGLIGENCE, IF ANY, COULD OFFSET THE AMOUNT OF DAMAGES AT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the allegation plaintiff’s vehicle came to a sudden stop for no apparent reason did not raise a question of fact in this rear-end collision case:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (id. [internal quotation marks omitted]). “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” … .

“An assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle” … , although such an assertion may be sufficient to raise a triable issue of fact on the issue of comparative fault … . * * *

[Defendant driver] asserted that the plaintiff brought his vehicle to a sudden stop for no apparent reason and “without any vehicle slowing or stopping ahead of plaintiff.” In essence, “this explanation amounts to nothing more than a claim that the plaintiff’s vehicle came to a sudden stop which, without more, failed to raise a triable issue of fact” as to the defendants’ liability … .

… Supreme Court erred in denying the plaintiff’s motion for summary judgment on the issue of liability.

Comparative negligence on the part of the plaintiff, if any, which would offset the amount of damages, must abide the trial … . Brindisi v ARJ Transp., Inc., 2026 NY Slip Op 02958, Second Dept 5-13-26

Practice Point: The allegation that plaintiff’s car stopped suddenly for no apparent reason will not defeat summary judgment in a rear-end collision case.

Practice Point: However if plaintiff is shown to be comparatively negligent at trial, the amount of damages could be offset.

 

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AFTER A TRAFFIC STOP, THE POLICE HAD PROBABLE CAUSE FOR A WARRANTLESS SEARCH OF DEFENDANT’S AUTOMOBILE FOR EVIDENCE OF DWI; DURING THE SEARCH THE POLICE OPENED A CLOSED BOX AND DISCOVERED A FIREARM; REVERSING SUPREME COURT, THE SECOND DEPARTMENT DETERMINED THE POLICE HAD PROBABLE CAUSE TO SEARCH FOR ALCOHOL IN THE CLOSED BOX (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, determined the police, after a traffic stop, had probable cause to search the defendant’s car for evidence of DWI. The police therefore had probable cause to open a closed box which could have contained alcohol, but in fact contained a firearm:

… Supreme Court credited the officers’ testimony that the defendant apparently had been drinking, and those factual findings and credibility determinations are entitled to great deference on appeal … . Thus, the police had probable cause to search the vehicle for evidence of the crime of operating a motor vehicle while under the influence of alcohol as a misdemeanor.

“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search” … , which may include closed containers … “found therein in which there was probable cause to believe that the [contraband] may be found” … .

The scope of a warrantless search of a vehicle is defined not by the nature of the container in which the contraband is secreted, but by the object of the search and the places in which there is probable cause to believe that it may be found … . The relevant inquiry here is not whether the cardboard box could physically hold an open container of alcohol, but whether there was reason to believe that it did … .

Here the cardboard box containing the gun was unsealed and heavy, indicating it was not empty. Further the defendant moved his hands under the seat when he was stopped, indicating he may have been secreting contraband in the box. The issue was whether that search could extend to the cardboard box. The label on the box stating that it originally contained “lithium battery portable power station” was not particularly significant since the box was not new, was unsealed, and was of a size and shape that could store a variety of objects, including an alcohol bottle or a gun.  People v Perry, 2026 NY Slip Op 03005, Second Dept 5-13-26

Practice Point: Upon a traffic stop, evidence the driver had been drinking authorized a warrantless search of every part of the car for alcohol. Because there was reason to believe a closed box could contain alcohol, the police were authorized to search the box and seize the firearm inside.

 

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