You are here: / Court of Appeals

Tag Archive for: Court of Appeals

HERE SLIPPERY PLASTIC SHEETING WAS USED TO PROTECT AN ESCALATOR DURING A PAINTING PROJECT; PLAINTIFF, A PAINTER, SLIPPED AND FELL WHEN HE STEPPED ONTO THE PLASTIC; THE PLASTIC SHOULD BE VIEWED AS A “FOREIGN SUBSTANCE,” LIKE ICE OR GREASE, WITHIN THE MEANING OF THE INDUSTRIAL CODE; IN ADDITION, THE PLASTIC SHOULD NOT BE VIEWED AS “INTEGRAL TO THE JOB” WITHIN THE MEANING OF THE INDUSTRIAL CODE BECAUSE THERE WERE SAFER ALTERNATIVES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, with a three-judge concurring opinion by Judge Garcia, determined the plastic sheeting placed on an escalator during painting was a “foreign substance” within the meaning the Industrial Code and the sheeting was not “integral to the work” within the meaning of the Industrial Code. Plaintiff was therefore entitled to summary judgment on the Labor Law 241(6) cause of action. Plaintiff was required to stand on the plastic while painting. He slipped and fell as he stepped onto the sheeting. There was testimony that drop cloths or wood panels would be safer alternative coverings:

As to whether the covering’s properties are the type encompassed within the affirmative mandate of 12 NYCRR 23-1.7 (d), because that section specifically lists ice, snow, water and grease, the catchall reference to “other foreign substance” includes those substances that share a quality common to the enumerated items. The listed items are, by their nature, types of material that are slippery when in contact with an area where someone walks, seeks passage, or stands, and, when the substance is present, would make it difficult if not impossible to use the work area safely, necessitating one of the affirmative mitigating measures set forth in section 23-1.7 (d) as a means to provide safe footing. The plastic covering used here similarly made [plaintiff’s] work area slippery upon contact, with the result that [plaintiff] could not traverse the plastic-covered escalator without risking a fall. * * *

… [T]he use of some cover was integral to [plaintiff’s] assignment to paint around the escalator. But that does not mean that any cover used—even one that was inherently slippery—was necessarily “integral,” particularly where a safer alternative would have accomplished the same goal. The plastic covering that was placed on the escalator was not integral to the paint job because it made [plaintiff’s] work area slippery, creating one of the hazards that the cover was intended to avoid. … Defendant was in a position to avoid this danger because … there were alternative coverings—drop cloths and wood panels—that were familiar, previously-used options that would have achieved the goal of protecting the worker from injuries caused by a slipping hazard and also protected the escalator from possible damage. Bazdaric v Almah Partners LLC, 2024 NY Slip Op 00847, CtApp 2-20-24

Practice Point: A prohibited “foreign substance” within the meaning of the Industrial Code can include slippery plastic sheeting (here used as a drop cloth during a painting project). Therefore requiring workers to stand or walk on slippery plastic sheeting can be a violation of the Industrial Code, triggering Labor Law 241(6) liability.

Practice Point: Because there were safer alternatives, the slippery plastic covering was not “integral to the job” within the meaning of the Industrial Code.

 

, ,

FOLLOWING THE RE-ELECTION OF VENEZUELAN PRESIDENT NICOLAS MADURO, THE VENEZUELAN NATIONAL ASSEMBLY NAMED JUAN GUAIDO INTERIM PRESIDENT AND DECLARED THE EXCHANGE OF UNSECURED FOR SECURED NOTES OFFERED BY THE VENEZUELAN STATE-OWNED OIL COMPANY UNAUTHORIZED; VENEZUELAN LAW CONTROLS THE VALIDITY OF THE NOTES UNDER THE UCC, NEW YORK LAW CONTROLS ALL OTHER ASPECTS OF THE TRANSACTION (CT APP). ​

The Court of Appeals, in a comprehensive full-fledged opinion by Judge Troutman, answering questions posed by the Second Circuit, determined the extent to which the exchange of unsecured for secured notes offered to shareholders by the Venezuela’s state-owned oil company was controlled by the New York Uniform Commercial Code (UCC). The court concluded the validity of the notes under the UCC is governed by Venezuelan law and New York law governs the transaction in all other aspects. The opinion is far too detailed and complex to fairly summarize here. At the heart of the dispute is the 2018 re-election of Nicolas Maduro as President of Venezuela and the declaration by the Venezuelan National Assembly naming Juan Guaido as interim President, followed by the National Assembly’s declaration that the exchange of unsecured for secured notes was unauthorized:

In 2016, Venezuela’s state-owned oil company offered a bond swap through which its noteholders could exchange unsecured notes due in 2017 for new, secured notes due in 2020. The United States Court of Appeals for the Second Circuit certified three questions to this Court concerning the extent to which New York law governs this transaction. … [W]e answer that Venezuelan law governs the validity of the notes under Uniform Commercial Code § 8-110 (a) (1), which encompasses within its scope plaintiffs’ arguments concerning whether the issuance of the notes was duly authorized by the Venezuelan National Assembly under the Venezuelan Constitution—i.e., whether there is a defect in the notes occasioned by the application of a constitutional provision bearing on the procedure through which the notes were issued. … New York law governs the transaction in all other respects, including the consequences if a security was “issued with a defect going to its validity” (UCC 8-202 [b] [1]-[2]). * * *

Plaintiffs are three related entities. Petróleos de Venezuela, S.A. (PDVSA) is an oil and gas company wholly owned by the Venezuelan government (Venezuelan Const art 303 [“the State shall retain all shares of” PDVSA]). PDVSA Petróleo S.A. (Petróleo) is incorporated in Venezuela and is a wholly owned subsidiary of PDVSA. PDV Holding, Inc. (PDVH), also a wholly owned subsidiary of PDVSA, is incorporated in Delaware and has its principal place of business in Houston, Texas. PDVH wholly owns CITGO Holding, Inc., which is the sole owner of CITGO Petroleum Corporation, a refiner and marketer of petroleum products in the United States. Nonparties CITGO Holding and CITGO Petroleum Corporation are both incorporated in Delaware with a principal place of business in Houston. Petróleos de Venezuela S.A. v MUFG Union Bank, N.A., 2024 NY Slip Op 00851, CtApp 2-20-24

Practice Point: Nicolas Maduro was re-elected President of Venezuela. Juan Guaido was subsequently named interim President of Venezuela by the Venezuelan National Assembly. The question at the heart of this dispute is whether actions taken by President Maduro (issuance of notes offered by the Venezuelan state-owned oil company) are valid in the face of a subsequent declaration by the Venezuelan National Assembly that the issuance of the notes was not authorized.

 

A RESTAURANT PROPERTY-INSURANCE POLICY WHICH COVERS “DIRECT PHYSICAL LOSS OR DAMAGE” DOES NOT COVER THE LOSS OF BUSINESS CAUSED BY COVID-19 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the cessation of in-person dining services because of COVID-19 did not constitute “direct physical loss or damage” within the meaning of plaintiff’s property insurance policy:

We do not take lightly the severe economic losses incurred by restaurants and other businesses serving the public as a result of the COVID-19 pandemic. But our task is to faithfully interpret the terms of the insurance policy before us, not to “rewrite the language of the polic[y] at issue” to reach a result with “equitable appeal” … . The coverage provisions relied upon by [plaintiff] CRO [Consolidated Restaurant Operations] only cover economic losses to the extent they are caused by “direct physical loss or damage” to insured property. We conclude that the business interruption caused by the actual presence of the coronavirus on the premises of CRO’s insured property, as alleged in the complaint, is insufficient to trigger such coverage. Consolidated Rest. Operations, Inc. v Westport Ins. Corp., 2024 NY Slip Op 00795, CtApp 2-15-24

Practice Point: Property insurance covering “direct physical loss or damage” does not cover a restaurant’s loss of business caused by COVID-19.

 

, , ,

A LETTER FROM AN ATTORNEY THREATENING LITIGATION CAN CONSTITUTE “RETALIATION” AGAINST THOSE WHO MAKE HOUSING DICSRIMINATION COMPLAINTS PURSUANT TO THE HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division, determined a letter sent by an attorney for the landlord, Pine Ridge, to the respondent CityVision, a not-for-profit corporation which tests whether housing facilities engage in discrimination, constituted “retaliation” against those who make discrimination complaints. Here a CityVision employee, Renner, posed as a prospective tenant and allegedly was steered to a different apartment complex because she had children (discrimination based on familial status). CityVision’s complaint to the NYS Division of Human Rights (DHR) was dismissed. An attorney for Pine Ridge then sent a letter to CityVision which mentioned seeking damages. CityVision then filed a second complaint alleging the letter constituted “retaliation:” Although the matter was remitted to DHR because it was CityVision’s, not Pine Ridge;s, burden to show it was engaged in a protected activity, the Court of Appeals held that the threat of litigation can constitute “retaliation” in this context.

… [A] plaintiff bears the burden to establish a prima facie retaliation claim … . To meet that burden, the plaintiff must show that (1) they have “engaged in protected activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is a causal connection between the protected activity and the adverse action” (id.). Only the first and third elements of CityVision’s retaliation claim are at issue here. ***

… [T]he record established that [the attorney’s] letter “shocked” CityVision’s employees and forced CityVision to expend resources and “scramble . . . to locate counsel” to address the threat. … [I]t was rational for DHR to conclude that the threatening letter caused CityVision to divert resources and could have dissuaded a person from pursuing a discrimination claim to protect their rights under the Human Rights Law. Indeed, a potential plaintiff might be chilled from filing a discrimination complaint when weighing the harm caused by the threat of retaliatory litigation, let alone the injury potentially occasioned by actual retaliatory litigation. DHR’s determination that the litigation threat amounted to adverse action in this case was rational and, thus, supported by substantial evidence. Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 2024 NY Slip Op 00793, CtApp 2-15-24

Practice Point: Here a not-for-profit filed a complaint against a landlord alleging housing discrimination. After the complaint was dismissed, an attorney for the landlord sent a letter to the not-for-profit arguably threatening litigation. The letter constituted “retaliation” within the meaning of the Human Rights Law.

 

,

PLAINTIFF FELL THROUGH THE DECK OF HER APRARTMENT; DEFENDANTS DID NOT SHOW A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE; THERE WAS NO CERTIFICATE OF OCCUPANCY ON FILE; THERE WAS A QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-landlord did not demonstrate a lack of actual or constructive notice of the condition of the deck which plaintiff fell through. In addition there was a question of fact whether the doctrine of res ipsa loquitur applied:

Defendants testified that they inspected the deck before purchasing the property and also obtained the services of an unidentified inspector. However, they failed to produce the inspection report or any evidence of its contents, nor did they establish that the defect in the deck could not have been discovered upon a diligent inspection … . In light of defendants’ failure to show lack of actual or constructive notice, it is of no moment that they did not create the defective condition of the deck.

… Plaintiff’s expert engineer opined that the lack of a certificate of occupancy for the property, including the deck, should have put defendants on notice that the deck was not compliant with applicable building codes and that an inspection would have uncovered weakened plywood under the deck’s tile surface.

… The doctrine of res ipsa loquitur allows an inference of negligence to be drawn where (1) the event is of a type that does not normally occur in the absence of negligence, (2) it was caused by an instrumentality within the exclusive control of the defendants, and (3) plaintiff’s actions did not contribute in any way to the occurrence … . The first and third elements are established here because “a deck being put to its regular and intended use does not ordinarily collapse in the absence of negligence,” and there is no claim that any contributory negligence by plaintiff caused the collapse … . The second element of exclusive control may be established to the extent that plaintiff’s claim is based on defendants’ failure to maintain the deck since their acquisition of the property, rather than on the illegal construction of the deck at some earlier date … . Rosario v Cao, 2024 NY Slip Op 00154, First Dept 1-11-24

Practice Point: Here the deck of plaintiff’s apartment collapsed and she fell through it. There was no certificate of occupancy on file. The elements of res ipsa loquitur were present. Defendants therefore did not demonstrate a lack of actual or constructive notice of the condition of the deck.

 

,

THE DRUGS IN DEFENDANT’S CAR MAY NOT HAVE BEEN IN “PLAIN VIEW” IF THE POLICE HAD NOT ILLEGALLY DETAINED DEFENDANT OUTSIDE THE CAR BEFORE LOOKING INSIDE THE CAR; SUPPRESSION GRANTED AND INDICTMENT DISMISSED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, over a three-judge dissent, determined defendant’s motion to suppress evidence seized from his car should have been granted. The proof at the suppression hearing demonstrated the police observed innocent behavior in a parking lot which which was interpreted to be a drug transaction. As an officer approached, defendant got out of his car and walked toward the officer. The officer frisked the defendant and had him stand at the back of the car. The officer then looked in the car and saw cocaine on the seat. The car was then searched. The Fourth Department, over a two-judge dissent, held that the cocaine was in plain view and would have been seen had the officer simply walked up to the car without detaining the defendant. But the Court of Appeals held that the “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation was made. Here the police had illegally detained defendant before the observation:

The Appellate Division reasoned that, even if [Officer] Young had not detained defendant, he could have observed the contraband in plain view simply by walking up to the driver’s seat and looking into the vehicle … . However, this conclusion is unsupported because, had the officers not unlawfully detained defendant behind the car, defendant could have walked back, opened the car door and sat on the driver’s seat—actions that, contrary to the dissent’s unsupported assertions … , would have blocked Young’s view of the contraband….  Therefore, the prosecution failed to meet its burden to establish at the suppression hearing that the unlawful detention of defendant was not the reason that Young had an “unobstructed view of the driver’s seat” … . People v Messano, 2024 NY Slip Op 00097, CtApp 1-11-24

Practice Point: The “plain view” exception to the warrant requirement only applies if the police are acting lawfully at the time the observation is made—not the case here.

 

​ALL AGREED A MULTIPLICITOUS COUNT SHOULD BE DISMISSED; THE CONCURRENCE ARGUED THE PROSECUTION HERE WAS UNNECESSARY AND A RESTORATIVE-JUSTICE APPROACH WOULD HAVE BEEN BEST (CT APP).

The Court of Appeals dismissed a multiplicitous count of the indictment. The concurrence by Judge Wilson argued that the underlying prosecution would have been better replaced by a restorative-justice approach. The grand larceny and perjury charges stemmed from what all parties agreed was a “dumb argument” on the street:

A multiplicitous indictment “creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than [they] actually committed” … . Even when the multiplicitous convictions do not increase the defendant’s sentence, the stigma of impermissible convictions endures and must be remedied. Thus, when a defendant is convicted of multiplicitous charges, the proper remedy is vacatur of all but one of the multiplicitous convictions and dismissal of those counts of the indictment, regardless of whether that corrective action has any effect on the defendant’s sentence. Here, there is no dispute regarding the Appellate Division’s conclusion that the two counts of perjury of which defendant was ultimately convicted were multiplicitous. As the People concede, the proper remedy is therefore dismissal of one of the convictions. People v Greene, 2024 NY Slip Op 00096, CtApp 1-11-24

Practice Point: It is entirely proper to dismiss a multiplicitous indictment-count after trial.

Practice Point: Here Judge Wilson, in a concurrence, argued that this prosecution, which arose from a “dumb argument” on the street, was unnecessary. The case should have been handled with a restorative-justice approach.

 

, , ,

A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO RULED THE CANINE SNIFF WAS A SEARCH, THE APPELLATE DIVISION WENT ON TO APPLY THE “REASONABLE SUSPICION” STANDARD AND FOUND THAT STANDARD HAD BEEN MET BY THE FACTS; THE COURT OF APPEALS DETERMINED THE APPELLATE DIVISION DID NOT HAVE THE AUTHORITY TO RULE ADVERSELY TO THE DEFENDANT ON THE STANDARD BECAUSE COUNTY COURT HAD NOT RULED ON THAT ISSUE (COUNTY COURT HELD THE SNIFF WAS NOT A SEARCH); THE MATTER WAS SENT BACK TO COUNTY COURT FOR RULINGS ON THE STANDARD FOR A SNIFF SEARCH (CT APP). ​

The Court of Appeals, in a comprehensive opinion by Judge Cannataro, determined that a canine sniff of a person to detect drugs is a search. The Fourth Department had reversed County Court and held that the canine sniff constituted a search. But the Fourth Department went on to apply the “reasonable suspicion” standard to whether the search was justified and found that standard had been met by the facts. Because County Count had not ruled on the correct standard for a sniff-search (County Court held the sniff was not a search), the Fourth Department did not have the authority rule against the defendant on that issue. The matter was sent back to County Court for rulings on what the correct standard is and whether that standard was met by the events preceding the sniff-search in this case:

… [W]e conclude that the canine sniff of defendant’s person qualified as a search under the Fourth Amendment. * * *

The second question presented by this appeal is whether the Appellate Division could decide that a canine sniff search of a person requires reasonable suspicion and was justified in this case. We conclude that the Appellate Division lacked jurisdiction to resolve those issues because County Court did not decide them adversely to defendant (see LaFontaine, 92 NY2d at 473-474). * * *

County Court held that the canine sniff of defendant’s person did not qualify as a search. The court did not decide the standard that would govern if the canine sniff did so qualify, much less whether that standard was met. Those questions present “separate” and “analytically distinct” issues from the threshold question of whether the sniff implicated constitutional protections or prohibitions … . The Appellate Division therefore erred in deciding those questions adversely to defendant…. . People v Butler, 2023 NY Slip Op 06468, CtApp 12-19-23

Practice Point: A canine sniff for drugs on a person is a search. The correct standard justifying such a search has not been determined.

Practice Point: If an issue has not been addressed by the lower court, the appellate court is powerless to rule adversely to the defendant on that issue. Here County Court had held that a canine sniff is not a search and therefore never ruled on the correct standard for such a search. The Appellate Division (which reversed County Court on whether the sniff is a search) could not decide what the correct standard for the search was and then rule that the standard had been met, because that ruling was adverse to the defendant. The matter was sent back to the County Court for a ruling.

 

,

LABOR LAW 240(1) DOES NOT COVER INJURY TO A MECHANIC REPAIRING A VEHICLE, EVEN IF THE EVENT IS “GRAVITY-RELATED;” HERE AN ELEVATED TRAILER FELL ON PLAINTIFF (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined that injury to a mechanic repairing a vehicle is not covered by Labor Law 240(1). Plaintiff was repairing a trailer which had been lifted up five feet by a backhoe. The backhoe rolled backward and the trailer fell on the plaintiff, causing serious injuries:

Labor Law § 240 (1) applies to workers “employed” in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . The statute’s “central concern is the dangers that beset workers in the construction industry” (id. at 525). If an employee is engaged in an activity covered by section 240 (1), “contractors and owners” must “furnish or erect” enumerated safety devices “to give proper protection” to the employee. “Whether a plaintiff is entitled to recovery under [section] 240 (1) requires a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies” … . To make this determination, a court must examine the “type of work the plaintiff was performing at the time of injury” … . * * *

Employing a holistic view of the statute, we conclude that the activity in which plaintiff was engaged, ordinary vehicle repair, is not an activity covered by Labor Law § 240 (1). Such work is analogous to that of a factory worker engaged in the normal manufacturing process. Plaintiff is a mechanic who was fixing the brakes on a trailer, a “[v]ehicle” as that term is defined in Vehicle and Traffic Law § 159. Expanding the statute’s scope to cover a mechanic engaged in ordinary vehicle repair would “extend the statute . . . far beyond the purposes it was designed to serve” … . Stoneham v Joseph Barsuk, Inc., 2023 NY Slip Op 06467, CtApp 12-19-23

Practice Point: Labor Law 240(1) does not cover injuries to a mechanic who is repairing a vehicle. Here the elevated trailer plaintiff was repairing fell on him.

 

, ,

THE FOIL REQUEST FOR DOCUMENTS PREPARED BY COUNSEL FOR THE BOARD OF PAROLE WAS PROPERLY DENIED; THE DOCUMENTS ARE PROTECTED FROM DISCLOSURE BY THE ATTORNEY-CLIENT PRIVILEGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the FOIL requests made to the Board of Parole of the Department of Corrections and Community Supervision (DOCCS) were properly denied. The documents were protected by attorney-client privilege:

… (DOCCS) properly withheld 11 documents prepared by counsel for the Board of Parole as privileged communications exempt from Freedom of Information Law (FOIL) disclosure. Counsel prepared the documents to train and advise Board of Parole commissioners on how to comply with their legal duties and obligations. The documents reflect counsel’s legal analysis of statutory, regulatory and decisional law and they therefore constitute attorney-client communications that were prepared “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,” specifically, to provide guidance on matters relevant to the Commissioners’ exercise of their discretionary authority … . Accordingly, DOCCS properly invoked the statutory FOIL exemption for privileged matters (see Public Officers Law § 87 [2] [a]; CPLR 4503 [a]). Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 06466, CtApp 12-19-23

Practice Point: A FOIL request for documents protected by attorney-client privilege is properly denied.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy