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DETERMINING SCHEDULE LOSS OF USE BY COMPARING THE RANGE OF MOTION OF LIMBS ON THE INJURED SIDE TO THE RANGE OF MOTION OF CORRESPONDING LIMBS ON THE OTHER SIDE MAY NOT BE APPROPRIATE IF THE OTHER SIDE HAS ALSO SUFFERED INJURIES, WHETHER PERMANENT OR TEMPORARY, IN THE PAST (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined comparison of the ranges of motion of the injured limbs to the corresponding limbs on the other side of the body (contralateral members), which resulted in 0 % loss of schedule use (SLU), was a flawed approach. The Board concluded that such a comparison was not appropriate only if the injuries on the other side of the body are permanent, which was not demonstrated to be the case here. The Third Department disagreed and held that the comparison may also be inappropriate if the prior injuries on the other side of the body were temporary, The matter was remitted:

… [W]e agree that evidence of a permanent physical or functional impairment of the contralateral member due to traumatic injury or other condition that does not affect the subject member would render a comparison to the contralateral member when determining range of motion inappropriate. However, comparing contralateral members that have temporary physical or functional impairments, either due to work-related or nonwork-related injuries, would also be inappropriate as such comparisons could equally result in inequitable range of motion findings. In our view, the Board’s interpretation of section 1.3 (3) (b) of the guidelines to apply only to permanent physical or functional impairments is unreasonable and cannot be upheld … . Here, the Board rejected [the] findings that a comparison of the contralateral members was inappropriate due to a lack of evidence that the injuries that claimant suffered to those members in the 2014 work-related accident resulted in permanent impairments. Under these circumstances, we remit the matter to the Board so that a proper assessment regarding a comparison of contralateral members may occur … . Matter of Brooks v New York City Tr. Auth., 2025 NY Slip Op 00130, Third Dept 1-9-25

Practice Point: Consult this decision for insight into the problems raised by determining a loss of schedule use by comparing ranges of motion on both sides of the body. Comparison of the injured side to the other side may not be appropriate if the other side has been injured in the past.

 

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PLAINTIFF WAS NOT IN AN AREA IN WHICH FALLING OBJECTS COULD BE ANTICIPATED, SO THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; PLAINTIFF WAS STRUCK BY A BOARD INTENTIONALLY THROWN INTO THE EXCAVATED AREA WHERE HE WAS WORKING; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff was in an excavated area four or five feet below ground level when a worker at ground level threw a board into the excavated area which struck plaintiff. Apparently throwing boards into the excavated area was part of the work, so the Labor Law 200 and negligent supervision causes of action survived:

Defendant thus demonstrated prima facie entitlement to judgment as a matter of law by showing that plaintiff was not injured by an “object [that] fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .T he burden thus shifted to plaintiff to raise a triable issue of fact, which plaintiff failed to do” … , requiring dismissal of the Labor Law § 240 (1) cause of action. * * *

Defendant’s proof showed that the dig area was not “normally exposed to falling material or objects” (12 NYCRR 23-1.7 [a] [1]), and, in any event, plaintiff was working only four to five feet below grade. Thus, defendant demonstrated the “overhead protection” regulation was not applicable … . Accordingly, defendant met its preliminary burden to show that plaintiff could not recover under Labor Law § 241 (6) as a matter of law … . Plaintiff’s proof does not raise an issue of fact on this point, thus dismissal of the Labor Law § 241 (6) claim should have been granted … . James v Marini Homes, LLC, 2025 NY Slip Op 00132, Second Dept 1-9-25

Practice Point: If the safety precautions related to falling objects are not applicable because the plaintiff was working in an area where falling objects could not be anticipated, then the “falling objects” protections in Labor Law 240(1) and 241(6) will not be triggered.

 

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PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this intersection traffic accident case. Defendant had the right-of-way (green light) when plaintiff made a left turn directly into defendant’s path of travel. Plaintiff’s testimony that defendant was speeding was not enough to raise a question of fact:

“A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . “Vehicle and Traffic Law § 1141 provides that the driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Further, Vehicle and Traffic Law § 1163(a) provides that no person shall turn a vehicle at an intersection . . . until such movement can be made with reasonable safety” … . “Although a driver with the right-of-way is entitled to anticipate that the other driver will obey the traffic laws requiring him or her to yield, a driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so” … . However, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . * * *

… [P]laintiff’s contention that the defendant was operating his vehicle at an excessive speed “is speculative and unsupported by any competent evidence” … . The defendant testified at his deposition that he was driving below the speed limit, and the plaintiff admitted during her deposition that she did not see the defendant’s vehicle prior to the collision … . Although evidence regarding the force of a collision or the manner in which a vehicle moved as a result thereof may be sufficient to create an inference that a driver was speeding in some circumstances … , the plaintiff’s deposition testimony was not sufficient to create such an inference … . Further, the plaintiff’s “contention[ ] that [the defendant] could have avoided the accident . . . w[as] speculative and unsupported by the record … . Morante v Blaney, 2025 NY Slip Op 00086, Second Dept 1-8-25

Practice Point: Although proof that defendant driver with the right-of-way was speeding when the plaintiff driver violated the Vehicle and Traffic Law by making a left turn may raise a question of fact, here plaintiff driver’s testimony standing alone, claiming defendant was speeding, was not enough to raise a question of fact.

 

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THE DEFENDANT DID NOT CONSENT, IN A WRITING SIGNED IN OPEN COURT, TO THE SUBSTITUTION OF AN ALTERNATE JUROR AFTER DELIBERATIONS HAD BEGUN REQUIRING A NEW TRIAL; THE SHOWUP IDENTIFICATION OF DEFENDANT WAS UNREASONABLE AND UNDULY SUGGESTIVE REQUIRING DISMISSAL OF THE COUNTS RELATED TO ONE OF THE TWO ROBBERIES (SECOND DEPT). ​

The Second Department, reversing one of defendant’s robbery convictions and ordering a new trial, determined (1) a new trial is required because the judge did not obtain defendant’s written and signed consent to the substitution of an alternate juror after deliberations had begun, and (2) the showup identification of the defendant was unreasonable and unduly suggestive, requiring dismissal of the counts relating to one of the two robberies (there was no identification testimony at the trial):

“Under CPL 270.35, once the jury has commenced deliberations an alternate juror may not be substituted for a regular juror unless the defendant consents to the replacement . . . in writing . . . signed by the defendant in person in open court in the presence of the court” … . * * *

… [T]the People failed to establish that the showup identification was conducted in close temporal proximity to the crime … . Further, there was no unbroken chain of events or exigent circumstances that justified the showup identification, as the defendant was already under arrest for the second robbery … .

… [T]he People failed to establish that the showup identification was not unduly suggestive. Here, prior to the showup identification, the complainant was informed by the police officers that they had someone in custody who matched the description provided by the complainant. During the showup identification, the defendant was handcuffed with his hands behind his back and there were one to two police officers near the defendant as he was treated by emergency medical service providers. While these factors alone do not necessarily render a showup identification unduly suggestive, when viewed cumulatively with other factors, including that the officers informed the complainant that the defendant committed another crime around the corner, that the defendant’s face was severely bruised and bleeding, and that it was “an active crime scene” with several surrounding officers dealing with witnesses “[y]elling and screaming,” the showup identification was unduly suggestive … . People v Simon, 2025 NY Slip Op 00117, Second Dept 1-8-25

Practice Point: A defendant’s consent to the substitution of an alternate juror after deliberations have begun must be in writing signed in open court.

Practice Point: Consult this decision for an example of a showup identification deemed unreasonable and unduly suggestive.

 

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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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