You are here: / First Department

Tag Archive for: First Department

, ,

DEFENDANT HAD SUFFICIENT CONTACTS WITH NEW YORK TO ALLOW THIS BREACH OF CONTRACT ACTION TO BE BROUGHT IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant, which issued preferred stock to plaintiff, had sufficient contacts with New York to bring the breach of contract action in New York:

Pursuant to the certificates of designation governing the preferred stock issued by defendant to plaintiff, defendant was required to provide dividends to a paying agent, which then provided the funds to a depository to pay the preferred stockholders. To facilitate dividend distributions, defendant designated entities located in New York as the paying agent and the depository. Further, defendant’s agreements with each of the depositories required the depository to maintain facilities in New York City. Defendant also contracted with multiple underwriters based in New York to sell the preferred stock. * * *

… [The] New York-based contacts are sufficiently related to plaintiff’s underlying breach of contract claim because “at least one element [of the cause of action] arises from the New York contacts” … . Defendant allegedly breached its duty under the certificates of designation not to sell stock to its affiliates “unless full cumulative dividends on the [preferred stock] . . . have been paid.” Defendant’s alleged breach consisted of not only its agreement to sell stock to one of its affiliates but also its failure to make full cumulative dividend payments to the preferred stockholders before completing the sale. … [D]efendant’s failure to make dividend payments, which necessarily would have been sent to its paying agent in New York, sufficiently connects defendant’s contacts with New York to the breach of contract cause of action … . Katz v Navios Mar. Holdings, Inc., 2026 NY Slip Op 03731, First Dept 6-11-26

Practice Point: Consult this decision for insight into when a defendant’s contacts with New York are sufficient to support a breach of contract action.brought in New York.​

 

,

A PLAINTIFF CAN USE THE SIX-MONTH “SAVINGS CLAUSE” IN CPLR 205(A) MORE THAN ONCE; WHEN THERE HAS BEEN AN APPEAL OF THE DISMISSAL OF THE COMPLAINT, THE SIX-MONTH PERIOD DOESN’T START TO RUN UNTIL 30 DAYS AFTER SERVICE OF THE APPELLATE DIVISION’S ORDER WITH NOTICE OF ENTRY (FIRST DEPT). ​

The First Department determined the dismissal of the complaint should have been “without prejudice” because plaintiff is entitled to use the six-month “savings clause” (CPLR 205(a)) more than once. The six-month period begins to run when when an appeal taken as of right is exhausted. Therefore the six-month period won’t start running until 30 days after the service of the First Department’s order with notice of entry:

The motion court properly determined that plaintiff did not have capacity to initiate this action because plaintiff has not yet obtained the necessary letters of administration. Dismissal of the action was therefore warranted. However, plaintiff is entitled to use the savings clause of CPLR 205(a) more than once … . Accordingly, we modify to make the dismissal without prejudice… .

Defendant’s contention that the grace period for plaintiff to bring a third action expired on December 3, 2025 (six months after the order appealed from was filed with notice of entry) is unavailing. “[A] prior action terminates for purposes of CPLR 205(a) when an appeal taken as of right is exhausted” … . Thus, “the six-month period for recommencing an action . . . begins to run once 30 days have elapsed following service of [our] order . . . with notice of entry” … . Lewis v TCPRNC, LLC, 2026 NY Slip Op 03635, First Dept 6-9-26

Practice Point: The six-month “savings clause” in CPR 205(a) can be used more than once.

Practice Point: Where, as here, there has been an appeal of the initial dismissal of the complaint, the CPLR 205(a) six-month period does not start to run until 30 days after the service of the appellate division’s order with notice of entry.

 

, , ,

PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT CALL HER TREATING PHYSICIAN AS A WITNESS AND DID NOT DEMONSTRATE THE PHYSICIAN WAS UNAVAILABLE OR THAT HIS TESTIMONY WOULD BE CUMULATIVE; PLAINTIFF RELIED SOLELY ON THE TESTIMONY OF A PSYCHIATRIST WHO FIRST SAW PLAINTIFF SIX YEARS AFTER THE ACCIDENT; DEFENDANT’S REQUEST FOR A “MISSING WITNESS” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; VERDICT SET ASIDE (FIRST DEPT).

The First Department, granting defendant’s motion to set aside the jury verdict and direct a new trial in this sidewalk slip and fall case, determined plaintiff’s failure to call her treating physician as a witness warranted the “missing witness” jury instruction. Plaintiff called only, Dr. Guy, a psychiatrist who saw plaintiff only a few times six years after the injury:

Plaintiff alleges that she was injured when she was walking on the sidewalk adjacent to defendant’s property when her foot became trapped in a hole, causing her to fall. At trial, plaintiff alleged that because of the accident, she suffered a cervical herniation that caused radiculopathy and required surgery. She further alleged that injuries to her knee and her lumbar spine would require future surgery.

The trial court should have given the jury a missing witness charge with regard to Dr. Jason Gallina, plaintiff’s treating physician and surgeon from the period beginning months after the accident until at least a year afterward. Dr. Gallina was the orthopedic surgeon who performed plaintiff’s cervical fusion surgery, and he was the doctor who allegedly recommended the lumbar surgery that plaintiff contended she would need in the future.

The law is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable or not under the party’s control, or that the witness’s testimony would be cumulative … . * * *

Although the burden was on plaintiff to show that Dr. Gallina was unavailable or not under her control, she made no such showing  … . … [T]he testimony from Dr. Gallina would not have been cumulative. Dr. Guy is a physiatrist, while Dr. Gallina is the orthopedic surgeon who performed plaintiff’s surgery. Encarnacion v St. Barnabas Hosp., 2026 NY Slip Op 03630, First Dept 6-9-26

Practice Point: The plaintiff in a personal injury action must call the treating physician as a witness or adequately explain the failure to do so. In the absence of an adequate explanation, the defendant is entitled to a “missing witness” jury instruction.​

 

ONLY A DEFECT APPARENT ON THE FACE OF THE NOTICE OF LIEN WARRANTS SUMMARY DISCHARGE OF A MECHANIC’S LIEN; ANY OTHER THEORY MUST AWAIT TRIAL OF THE FORECLOSURE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner should not have been awarded summary discharge of a mechanic’s lien. Summary discharge is available only when a defect in the lien is apparent on the face of the notice of lien. Any other theory must await trial of the foreclosure action:

The court should not have granted the petition for summary discharge of the mechanic’s lien that respondent placed on petitioner’s property. As relevant here, summary discharge of a lien is available “[w]here it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed” (Lien Law § 19[6]). “[A] lien may be summarily discharged only for defects appearing on its face” … , and “any dispute regarding the validity of the lien must await trial of the foreclosure action” (… Matter of Northside Tower Realty, LLC v Klin Constr. Group, Inc., 73 AD3d 1072, 1072 [2d Dept 2010] [“A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19(6)”]).

Petitioner identifies no defect appearing on the face of the notice of lien, raising instead lack of consent and other issues related to the validity of the lien. Those issues cannot be resolved under Lien Law § 19(6) … . Lien Law § 38 does not provide alternative grounds to affirm the lien discharge, as no court has issued an order requiring respondent to provide an itemized statement … .  Matter of Broadway PT 1710 LLC v Kingdom Assoc., Inc., 2026 NY Slip Op 03624, First Dept 6-9-26

Practice Point: Any defect warranting summary discharge of a mechanic’s lien must be apparent on the face of the notice of lien.

 

THE STAY ON A NEW YORK ACTION TO RECOVER A NAZI-LOOTED PAINTING, PENDING A SWISS RULING ON THE IDENTITY OF THE HEIRS TO THE PAINTING, VACATED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined a stay on a New York action seeking the return of a Nazi-looted painting should be vacated in the interest of just. The action had been stayed pending a Swiss ruling on the identity of the heirs to the painting. That ruling has yet to be made. The facts of the case are complex and cannot be fairly summarized here. Estate of Margaret Kainer v Christies Inc., 2026 NY Slip Op 03506, First Dept 6-4-26

 

,

THAT PLAINTIFF IN A TRAFFIC ACCIDENT CASE DID NOT HAVE A PROPER DRIVER’S LICENSE DOES NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).

The Frist Department, reversing Supreme Court, noted that the fact that plaintiff in this traffic accident case did not have a proper driver’s license at the time of the accident did not raise a question of fact about plaintiff’s purported comparative negligence:

… [T]hat plaintiff was driving without a proper driver’s license does not provide a basis for finding an issue of fact as to comparative negligence (see Huff v Rodriguez, 88 AD3d 1274, 1275 [4th Dept 2011] …”[“the absence or possession of a driver’s license is not relevant to the issue of negligence”]). Torres v Occhino, 2026 NY Slip Op 03412, First Dept 6-2-25

Practice Point: In a traffic accident case, the fact that plaintiff did not have a proper driver’s license does not raise a question of fact about plaintiff’s purported comparative negligence.

 

SUPREME COURT HAD RULED THAT, AT THE TIME HE WAS STRUCK BY A FALLING OBJECT, PLAINTIFF WAS NOT ENGAGED IN A TASK COVERED BY THE LABOR LAW; PLAINTIFF’S TASK AT THE EXACT MOMENT OF THE ACCIDENT IS NOT DISPOSITIVE; THE LABOR LAW COVERS ALL TASKS NECESSARY AND INCIDENTAL TO THE RELEVANT WORK, HERE THE REMOVAL OF DEBRIS FROM THE WORKSITE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s activities were within the scope of the Labor Law when he was struck by a falling object. Plaintiff was struck when returning to the truck he had just moved. Defendants successfully argued below that, at the time of his injury, plaintiff was not engaged in work covered by the Labor Law. The First Department disagreed:

Plaintiff was injured when an object, alleged to be a pallet or a skid, fell on his head while he was working as a garbage truck driver at an active construction site owned by defendant MIP One Wall Street Acquisition LLC and where defendant J.T. Magen & Company Inc. was the general contractor. Plaintiff’s employer, Independence Carting, had contracted with J.T. Magen to perform Saturday carting services at the site. Plaintiff drove the garbage truck to the loading area where J.T. Magen laborers tasked with debris removal at the construction site loaded construction debris onto the truck while plaintiff operated the truck’s compacting machinery. J.T. Magen laborers directed plaintiff to move the garbage truck to another location in the loading dock area for additional construction debris to be loaded. At this second location, plaintiff exited the truck to check its position. When returning to the truck he was hit on the head by an object alleged to be a pallet or skid that fell from an elevated platform adjacent to plaintiff’s truck.

Plaintiff’s task at the exact moment of his accident is not dispositive of whether he was engaged in a protected activity … . “Rather, the inquiry includes whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes . . . and whether the plaintiff was performing work ‘necessary and incidental to’ a protected activity” … . Here, plaintiff was performing construction debris removal services at the construction site pursuant to a contract between J.T. Magen and his employer. The record establishes that the work he was performing was necessary and incidental to construction-related cleaning for an active construction site … . Therefore, plaintiff was protected by the Labor Law. Lapinski v MIP One Wall St. Acquisition LLC, 2026 NY Slip Op 03392, First Dept 6-2-26

Practice Point: The exact task performed by a worker at the time of an accident is not dispositive of whether the accident is within the scope of the Labor Law. Here plaintiff’s employer was hired by the general contractor to remove debris from a worksite. The fact that the plaintiff was struck by a falling object after moving a truck at the request of employees of the general contractor did not take the accident out of the scope of the Labor Law.

 

,

THE CONTRACTOR RETAINED PLAINTIFF’S EMPLOYER TO INSTALL AN OIL TANK; THE CONTRACTOR DID NOT EXERCISE SUPERVISION AND CONTROL OVER PLAINTIFF’S WORK; PLAINTIFF WAS INJURED WHEN A PIECE OF THE TANK BROKE OFF AND STRUCK HIM; THE LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE CONTRACTOR WERE DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 and common-law negligence causes of action against a contractor, Controlled Combustion, should have been dismissed. Plaintiff’s employer was retained by Controlled Combustion to install an oil tank. A piece of the tank broke off and struck the plaintiff. Controlled Combustion did not exercise supervisory control over plaintiff’s work:

Controlled Combustion is entitled to dismissal of plaintiff’s Labor Law § 200 and common-law negligence claims because it established that it did not “actually exercise[] supervisory control over” plaintiff’s work … . General oversight, regular inspections, and authority to stop unsafe work are insufficient to impose liability under Labor Law § 200 or common-law negligence … . Plaintiff testified that while installing an oil tank in the basement of a building owned by 2350 Broadway, he was struck by a base piece of the tank when the piece detached and fell from an electric chain hoist, which was owned by his employer. Controlled Combustion, a commercial heating company, was retained to perform work in the building, and it in turn retained plaintiff’s employer to install the oil tank. Plaintiff also testified that his employer came up with the plan to move the base piece with a hoist and that all orders of how to do his job came from his employer, not Controlled Combustion. Rosario v C.C. Controlled Combustion Co., Inc., 2026 NY Slip Op 03279, First Dept 5-26-26

Practice Point: Consult this decision for insight into what constitutes “supervision and control” over a plaintiff’s work such that the contractor which hired plaintiff’s employer can be liable to plaintiff under Labor Law 200 and common-law negligence.

 

, , , , ,

ALTHOUGH PLAINTIFF IS A NEW JERSEY RESIDENT WORKING FOR A NONDOMICILIARY EMPLOYER, SHE WAS REQUIRED TO MAKE REGULAR VISITS TO HER EMPLOYER’S CLIENT IN NEW YORK CITY; PLAINTIFF ALLEGED SHE WAS SEXUALLY HARASSED, IN NEW YORK CITY, BY THE CLIENT’S EMPLOYEE; BECAUSE THE ALLEGED DISCRIMINATORY CONDUCT “HAD AN IMPACT IN NEW YORK,” NEW YORK HAD SUBJECT MATTER JURISDICTION FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, reversing Supreme Court, determined New York had jurisdiction over this employment discrimination action brought under the NYS Human Rights Law and the NYC Human Rights Law. The plaintiff is a New Jersey resident and Ethicon, alleged to be her employer, is a New Jersey corporation. Plaintiff alleged she was assigned to a sales account for Mount Sinai Health System, Inc. which required her to meet regularly with an manager at Mount Sinai in New York City. Plaintiff alleged Ethicon knew that she would be subject to sexual harassment by the Mount Sinai manager. The First Department held that the term “employer” in the Human Rights Law included the nondomiciliary Ethicon because the discriminatory conduct at issue “had an impact in New York.” ​

​… [T]he issue here is how we should interpret the State HRL’s definition of an “employer” as used in the phrase “all employers within the state” for purposes of liability under the State HRL (Executive Law § 292 [5]). The motion court read this definition as requiring an employer to have a physical presence in New York and therefore found both the State HRL and the City HRL inapplicable to Ethicon, “a New Jersey employer of [plaintiff,] a New Jersey resident.”  * * *

… [T]he Court of Appeals in Hoffman v Parade Publs. (15 NY3d 285 [2010]), adopted an impact test for nonresidents who seek the protection of the City HRL and found that test “relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the City HRL to those who are meant to be protected—those who work in the city” …. . * * *

Thus, the relevant inquiry is whether the alleged discriminatory conduct had an impact in New York regardless of the residency of the parties. Here, plaintiff, a New Jersey resident, alleges that Ethicon, her nondomiciliary employer, assigned her to service a New York-based account, requiring her regular presence at Mount Sinai’s hospital where the alleged traumatic sexual harassment occurred. Plaintiff further alleges that Ethicon was aware of the harassment and nevertheless required her to continue the assignment because of the account’s importance. At the pleading stage, plaintiff’s allegations, among other discriminatory acts, that her Ethicon manager discouraged her from complaining and “coached her to ‘lean into’ the sexual harassment so Mount Sinai would continue using Ethicon’s services” are more than sufficient to allege sexual discriminatory conduct having a concrete impact on plaintiff within New York to confer subject matter jurisdiction. Plaintiff’s residency outside New York does not preclude application of the State HRL or City HRL where the alleged misconduct occurred in New York City and affected plaintiff while she was working there. Arizzo v Ethicon, Inc., 2026 NY Slip Op 03262, First Dept 5-26-26

Practice Point: Consult this opinion for insight into subject matter jurisdiction under the NYC and NYS Human Rights Law. If a nonresident employee of a nondomiciliary corporation, as part of her job, meets regularly with a client in New York City and is sexually harassed by the client, New York has subject matter jurisdiction over Human Rights Law causes of action.​

 

, , , , ,

MOTHER STABBED HER TWO CHILDREN AND FILED AN INTENT TO PRESENT A PSYCHIATRIC DEFENSE IN THE CRIMINAL TRIAL; THE SURVIVING DAUGHTER AND FATHER SUED DEFENDANT HOSPITAL ALLEGING MOTHER WAS NEGLIGENTLY TREATED SHORTLY BEFORE THE STABBING; MOTHER WAIVED THE PHYSICIAN-PATIENT AND RELATED PRIVILEGES BY FILING THE NOTICE OF INTENT TO PRESENT A PSYCHIATRIC DEFENSE; PLAINTIFFS WERE ENTITLED TO DISCOVERY OF MOTHER’S MEDICAL RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined non-party mother had waived the physician-patient and related privileges by filing a Criminal Procedure Law (CPL) section 250.10 notice of intent to present a psychiatric defense in the prior criminal trial. Mother had stabbed her two children. The instant personal injury action is brought by the surviving child and her father alleging mother was negligently treated by defendant hospital shortly before the stabbing. The plaintiffs sought discovery of mother’s medical records:

Generally, medical records are protected from disclosure (see CPLR 4504 [physician-patient privilege]; 4507 [psychologist-patient privilege]; Mental Hygiene Law § 33.13[c] [privilege for patient information reported to the Office of Mental Health or the Office for People with Developmental Disabilities]). However, a patient can waive those privileges “either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue” … . However, simply denying the allegations in a complaint does not constitute such a waiver … . * * *

… [W]aiver of the physician-patient and related privileges in a criminal action generally carries over to a subsequent civil action, provided the defendant’s mental condition remains at issue … . * * *

We are of the view that … the filing of a CPL 250.10 notice of intent to present a psychiatric defense in the criminal case was sufficient to demonstrate that [mother]  placed her mental condition at issue so as to waive her privilege to confidentiality of her medical, psychiatric, and mental health records maintained by [defendant]. . S.M. v City of New York, 2026 NY Slip Op 03248, First Dept 5-21-26

Practice Point: Filing a notice of intent to present a psychiatric defense in a criminal trial waives the physician-patient and related privileges and the waiver carries over to a subsequent related civil action.

 

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