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A MINOR INJURY TO ONE CHILD BY ANOTHER WHILE MOTHER WAS NAPPING NEARBY, AND A SUBSEQUENT VERBAL ARGUMENT WITH THE POLICE, DID NOT AMOUNT TO NEGLECT BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the single incident in which one child injured another while mother was napping and a subsequent verbal argument with the police did not amount to neglect:

Petitioner failed to show by a preponderance of the evidence that a minor accident involving two of the children while the mother was napping constituted neglect. The agency’s proof that the brother had a minor injury to his neck after an isolated incident did not establish that the child’s mental or emotional condition was impaired or in imminent danger of being impaired as a result of the incident, or that the mother failed to exercise a minimum degree of care … . Indeed, the brother was without any visible injury shortly after the incident. Nor did the incident cause any impairment or imminent danger to the daughter or to the baby, who was asleep in the next room. Although an isolated accidental injury may constitute neglect if the parent was aware of an intrinsically dangerous situation … , there is no evidence that the mother’s napping while the children were in close proximity and within earshot was intrinsically dangerous.

Similarly, Family Court’s finding that the mother’s interaction with the police in any respect rose to the level of neglect is not supported by a preponderance of the evidence. A verbal argument with a police officer did not pose any serious or potentially serious harm to the infant child, who was the only child with her at that time … . Matter of Rebecca F. (Danequea J.), 2025 NY Slip Op 00042, First Dept 1-7-25

Practice Point: One child inflicted a minor injury on another while mother was napping nearby. Subsequently mother argued with the police when she was not allowed back in the apartment to get her cell phone charger. These incidents did not support Family Court’s neglect finding.

 

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICER WHO SEARCHED DEFENDANT’S PERSON INTENDED TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH; THEREFORE THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the People did not prove the officer who searched defendant’s person intended to arrest the defendant at the time of the search. Therefore the People did not prove the evidence was seized pursuant to a valid search incident to arrest and the evidence should have been suppressed:

Defendant was entitled to suppression of the cocaine and money recovered in a search of his person, which occurred after officers pulled over the minivan in which he was a passenger for two traffic violations and detected a strong odor of marijuana as they approached the van. An officer saw loose marijuana on defendant’s lap, asked him to step out of the car, and immediately frisked him, finding a small plastic bag in defendant’s pocket and a significantly larger one inside the top of his underwear. The drugs were not recovered in a valid search pursuant to a lawful arrest because the record fails to show that the officer had any intention of arresting defendant before recovering the cocaine … . People v Aragon, 2025 NY Slip Op 00055, First Dept 1-7-25

Practice Point: Unless the People prove the officer who searched defendant’s person intended to arrest the defendant when the search was done, the search is not a valid search incident to arrest and suppression is required.

 

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PLAINTIFF FELL FROM A SCAFFOLD WITHOUT GUARDRAILS; DEFENDANTS’ EVIDENCE THAT GUARDRAILS WERE AVAILABLE WAS NOT STRONG ENOUGH TO RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this scaffold-fall case was entitled to summary judgment on his Labor Law 240(1) cause of action. Defendants argued that guardrails for the scaffold were available but plaintiff failed to use them. The First Department held that the evidence of the availability of the guardrails was not strong enough to raise a question of fact:

“Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident” … . Caselaw has not further defined the meaning of “readily available,” beyond qualifying that a safety device need not be “in the immediate vicinity.” Nonetheless, the seminal Gallagher case itself specifies that the worker should at least “kn[o]w where to find the safety devices” … . Conversely, a defendant may do much to show that safety devices were readily available by showing that the worker knew “exactly where they could be found” … .

While defendants indicated that workers were generally aware that railings were available throughout the site, defendants failed to show that their precise locations were made known to the workers. The affidavits of the three foremen and coworker are conclusory, the record does not specify or even approximate the location of the guardrails, and at oral argument, counsel was unable to specify where these safety devices could be found. Moreover, although the record contains photos of the subject scaffold, there are no photographs of the missing guardrails that might serve as a guide to their possible location. Defendant’s proof demonstrated only “[t]he general availability of safety equipment at a work site [which] does not relieve the defendants of liability” … . Perez v 1334 York, LLC, 2025 NY Slip Op 00066, First Dept 1-7-25

Practice Point: Although a defendant may escape liability in a Labor Law 240(1) action if the plaintiff failed to use available safety equipment, proof of the “general availability” of the safety equipment does not raise a question of fact. The proof of available safety equipment must be specific. Here there was no evidence the defendants even knew where the safety devices were.

 

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PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED; NO “NEW FACTS” WERE DEMONSTRATED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Labor Law 240(1) action, determined plaintiff’s motion to renew his summary judgment motion should not have been granted. Plaintiff was attempting to disassemble a freezer when the freezer roof collapsed and he fell to the floor:

Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . In his motion for leave to renew and reargue, plaintiff sought to admit a supplemental expert affidavit in which plaintiff’s expert sought to clarify that accessing the freezer’s ceiling was an essential task of disassembly. Plaintiff averred that this information was not proffered before because he was not on notice that he needed to address the different tasks required for disassembly. However, our review of the original motion papers reveals that, not only did the expert’s original affidavit briefly address the need for plaintiff to climb on top of the freezer, but also that [defendant’s] affirmations in opposition were sufficient to put plaintiff on notice that the necessity of plaintiff’s work on the ceiling would be at issue … . Additionally, as plaintiff had already retained an expert, there was nothing preventing plaintiff from submitting additional evidence in reply to [defendant’s] affirmations in opposition, prior to the court’s original determination … .Therefore, Supreme Court improperly granted plaintiff’s motion to renew, and plaintiff’s supplemental expert affidavit should not be considered on summary judgment … . Burgos v Darden Rests., Inc., 2025 NY Slip Op 00009, Third Dept 1-2-25

Practice Point:  A motion to renew a summary judgment motion must be based upon new facts which could not have been addressed in the initial motion, not the case here.

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REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the removal of the children from mother’s care without notice violated mother’s due process rights. In addition, the evidence did not support the removal:

… [P]ursuant to a dispositional order, the children were released to their mother’s care with ACS [Commissioner of the Administration for Children’s Services] supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted … . There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue … . Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position.

Furthermore, Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record …  Contrary to the court’s conclusion, neither the initial neglect petition nor the order to show cause alleged that the mother used illicit substances or was impaired while taking care of the children. Moreover, during the 10-month period of supervision in 2023—2024, the mother submitted to at least three random drug screenings and tested negative for all illicit substances. When the mother underwent an evaluation by a credentialed alcohol and substance abuse counselor on February 1, 2024, she was not found to need any drug treatment services. Matter of E.I. (Eboniqua M.), 2025 NY Slip Op 00022, First Dept 1-2-25

Practice Point: Here removal of the children from mother’s care without prior notice to mother violated her due process rights. Removal was not supported by the evidence.

 

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PROOF THE MORTGAGE WAS ASSIGNED TO PLAINTIFF WITHOUT PROOF THE NOTE WAS ALSO ASSIGNED BEFORE THE ACTION WAS COMMENCED IS NOT SUFFICIENT TO DEMONSTRATE STANDING TO FORECLOSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff did not demonstrate it had standing to foreclosure. Plaintiff proved the assignment of the mortgage to it, but did not prove the assignment of the note. In addition, plaintiff did not prove it physically possessed the note which had been indorsed to it:

While plaintiff’s papers established that the original noteholder, nonparty Realty Closing Solution LLC, assigned the note to nonparty 1Sharpe Opportunity Intermediate Trust (1Sharpe) on June 24, 2019, plaintiff did not establish that 1Sharpe assigned the note to plaintiff before this action was commenced. Instead, plaintiff established that 1Sharpe assigned the mortgage to plaintiff. Without also assigning the note, the assignment of the mortgage, by itself, is of no incident because “a transfer of the mortgage without the debt is a nullity” … . …

… [P]laintiff did not establish that it physically possessed the note indorsed to it. Plaintiff relies on an allonge from 1Sharpe included with the note in the complaint. However, plaintiff furnished no evidence, either by producing the physical note or through the attestations of its affiant … that this allonge, which was indorsed in blank, was “firmly affixed” to the note (UCC 3-202[2]…). 1S REO Opportunity 1, LLC v Harlem Premier Residence, LLC, 2025 NY Slip Op 00016, First Dept 1-2-25

Practice Point: Here the plaintiff demonstrated the mortgage was assigned to it but did not demonstrate the note was assigned to it before the action was commenced. Therefore the plaintiff did not prove it had standing to foreclose.

 

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PLAINTIFF SLIPPED AND FELL ON A WET SPOT ON THE MARBLE FLOOR IN THE CONDOMINIUM LOBBY DURING A SNOW STORM; THE DEFENDANT CONDOMINIUM HAD PLACED RUBBER MATS ON THE FLOOR AND PERIODICALLY MOPPED WET SPOTS; THE STORM-IN-PROGRESS DOCTRINE APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant condominium was entitled to summary judgment in this wet-marble-floor slip and fall case. It was snowing at the time of the fall, triggering the storm-in-progress doctrine, and defendant had placed rubber mats on the floor and periodically mopped wet spots:

The condominium established prima facie entitlement to summary judgment by submitting certified weather reports demonstrating that there was an ongoing snowstorm at the time of accident, and that the “storm-in-progress” doctrine therefore applied … . The condominium demonstrated that it undertook reasonable maintenance measures to address the wet conditions created by tracked-in snow by laying rubber mats throughout the lobby, including an eight-foot runner from the building entrance to the elevator bank, as well as having the doorman and other staff dry mop any wet spots … . Although plaintiff’s accident took place on a small portion of the floor that was uncarpeted and remained uncovered, a defendant is not required under the “reasonable care” standard to cover all of its floors with mats to prevent someone from falling on moisture … . In response to the condominium’s prima facie showing, plaintiff failed to submit evidence sufficient to raise a triable issue of fact.

The condominium also showed lack of actual notice of the specific wet condition that caused plaintiff to slip. The building’s doorman testified that he monitored the condition of the lobby throughout the day and would mop any wet spot, and plaintiff admitted that she did not see any wet condition on the floor when she left the building 15 minutes earlier … . Similarly, because the water might have been tracked in by plaintiff or by other residents entering the lobby, there is no basis for a finding of constructive notice … . Nor was the condominium’s general awareness that the floor might become wet while it was snowing sufficient to establish constructive notice of the specific condition that caused plaintiff’s injury … . Plaintiff’s opposition did not raise a triable issue of fact regarding notice…. . Hart v 210 W. 77 St. LLC, 2024 NY Slip Op 06655, First Dept 12-31-24

Practice Point: The storm-in-progress doctrine applied in this slip and fall case where plaintiff slipped on a wet spot on the lobby floor caused by tracked in snow during an snow storm.​

Practice Point: A general awareness that tracked-in snow will result in wet spots on a marble floor does not amount to constructive notice of the specific condition which caused plaintiff’s slip and fall.

 

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THE WORN MARBLE STAIRWAY TREAD WAS NOT AN ACTIONABLE DEFECT; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant property-owner (Marion) was entitled to summary judgment in this stairway slip and fall case. Defendant demonstrated it did not have actual or constructive notice of any defective condition on the stairs:

Marion demonstrated prima facie that the worn marble tread depicted in the photographs taken by plaintiff is not an actionable defect … . Plaintiff and Marion’s superintendent testified that the photographs taken by plaintiff accurately reflected the condition of the stair on the day of the accident, and there is no claim that the stair was wet, slippery, or covered with debris. Moreover, Marion’s expert opined that the accident could not have occurred as plaintiff described because when she fell, her left foot was in the middle of the tread rather than on the right-hand side where the worn condition she cited was located.

Marion also demonstrated that it did not have actual or constructive notice of a defective condition on the stair in that the superintendent testified that there were no complaints and no violations had been issued with respect to the stair. He stated that he swept the stairs five days and mopped three days a week, and that the photographs accurately depicted the condition of the stair on the day of the accident. Plaintiff’s complaints to the prior superintendent about the general condition of the stairs was insufficient to constitute notice of the specific condition cited by plaintiff as the cause of her fall … .

In opposition, plaintiff failed to raise a triable issue of fact as to Marion’s negligence. The opinion of her expert cited numerous dangerous conditions on the stairs and in the stairway, but plaintiff did not cite any of them as a proximate cause of her accident … . James v Chestnut Holdings of N.Y., Inc., 2024 NY Slip Op 06656, First Dept 12-31-24

Practice Point: Here, in this stairway slip and fall case, a worn tread in a marble stairway did not constitute an actionable defect.

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S FANNY PACK WAS A VALID SEARCH INCIDENT TO ARREST; CONVICTIONS REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions for tampering with evidence and resisting arrest, determined the search of defendant’s fanny pack was not demonstrated to have been a valid search incident to arrest:

The People failed to demonstrate that the search of defendant’s fanny pack was a proper search incident to a lawful arrest because they failed to establish either that the officer actually arrested defendant or intended to do so before opening his bag … . People v Lamberty, 2024 NY Slip Op 06669, First Dept 12-31-24

Practice Point: Here the People did not prove the officer who searched defendant’s fanny pack actually arrested defendant or intended to arrest the defendant before opening pack. Therefore the People did not prove the search was a valid search incident to arrest.

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BEFORE HEARSAY CAN BE RELIED UPON BY THE COURT FOR A SORA RISK-LEVEL ASSESSMENT, THE PEOPLE MUST ESTABLISH A FOUNDATION SUPPORTING THE RELIABILITY OF THE HEARSAY (THIRD DEPT).

The Third Department, reversing County Court and remitting the SORA risk-assessment proceeding, determined County Court should not have relied on hearsay to prove that the adult in a photograph depicting sexual activity between an adult and a child was the defendant. The case was remitted to allow the People the opportunity to establish a foundation for the reliability of the hearsay:

In assessing defendant 25 points under risk factor 2 for sexual contact with the victim, County Court relied upon a contested statement in the case summary made by an assistant district attorney to the author of the case summary. The assistant district attorney stated that defendant had possessed an image depicting him and his female relative engaged in sexual activity. The People concede, and we agree, that County Court improperly relied upon this hearsay, without making an inquiry into its reliability, in assessing 25 points under risk factor 2 for sexual contact with the victim. While the court found that the photographs depicted sexual activity between the child and an adult, it made no finding that defendant was that adult. The People therefore failed to establish by clear and convincing evidence that there was any sexual contact between defendant and the victim … .

Although defendant argues that the remedy for the error is to subtract 25 points from risk factor 2 and, upon doing so, designate him a risk level one sex offender, we agree with the People that the more appropriate course is to remit the matter to the SORA court “to provide the District Attorney an opportunity to establish a foundation” supporting the hearsay’s reliability … . People v Davis, 2024 NY Slip Op 06632, Third Dept 12-26-24

Practice Point: The People must establish a foundation supporting the reliability of any hearsay relied upon by the court in a SORA risk-level assessment proceeding.​

 

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