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THE PETITION RAISED THE QUESTION WHETHER THE APPELLANT’S DAUGHTER AND THE FAMILY ATTORNEY CAUSED THE APPELLANT TO MISS THE DEADLINES FOR FILING A SPOUSAL ELECTION; ALTHOUGH THE STATUTORY DEADLINES CANNOT BE EXTENDED, THE MATTER OF FIRST IMPRESSION HERE ASKS WHETHER APPELLANT’S DAUGHTER IS EQUITABLY ESTOPPED FROM INVOKING THE DEADLINES (FIRST DEPT).

The First Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Shulman, in a matter of first impression, over an extensive dissenting opinion, determined the facts alleged, if proven, could support the application equitable estoppel to preclude respondent-daughter from invoking statutory deadlines preventing her mother (the appellant) from filing a spousal election. The petition raised the question whether respondent daughter and the family attorney caused appellant to miss the deadlines:

Appellant is the 88-year-old surviving spouse of the decedent, her husband of 64 years. Over the course of their marriage, they acquired, rehabilitated, and operated 14 East Village buildings forming the core of a family real estate enterprise ultimately valued at more than $45 million. Appellant handled day-to-day management while the decedent handled the financials. Their two children include respondent and a son, Carlo. * * *

Following the decedent’s death, appellant experienced significant medical challenges and cognitive vulnerability leading to hospitalization and rehabilitation. During this period, the family’s long-time attorney, nonparty Gregg Weiss, prepared a broad, highly customized power of attorney naming respondent as attorney-in-fact. This document granted wide authority, with powers far beyond those typically granted in the statutory form, including the power to engage in trust related transactions. It was brought to appellant in the rehabilitation facility, where she signed it without any discussion or explanation of its consequences. * * *

Despite representing appellant and decedent’s estate at the time, Weiss never provided appellant with any drafts beforehand, nor is there any indication Weiss reviewed drafts with her or discussed their legal significance. These are just some of the facts the petition alleges that were the product of fiduciary nondisclosure and conflict. Critically, a video recording in the record shows respondent presenting the documents to appellant, who mutely signs them while visibly medicated on Lorazepam and impaired, without reading or understanding their terms. Matter of Giurdanella, 2026 NY Slip Op 06234, First Dept 10-22-26

PLAINTIFF FELL FROM GROUND LEVEL TO A BELOW-GROUND-LEVEL ENTRANCEWAY; HE THEREFORE FELL FROM AN ELEVATED WORK SITE IN THE ABSENCE OF AN ADEQUATE SAFETY DEVICE AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who fell from ground level to a below-ground-level entranceway was entitled to summary judgment on the Labor Law 240(1) cause of action:

Plaintiff, employed as a plumber’s assistant, was injured when he fell over a barrier from the sidewalk level into a below-ground entranceway while attempting to retrieve a pipe at the bottom of the entranceway. Plaintiff was instructed to work near the barrier or “fence” above the underground entranceway to set up a winch, and as such was required to lean over the barrier to perform his work. Thus, even if plaintiff was working on the ground level, he was working on an elevated work site and was not provided with adequate safety devices to protect him from falling over the barrier … . Nunez v Hispanic Socy. of Am., 2026 NY Slip Op 06206, First Dept 10-22-26

Practice Point: Falling from ground level to below ground level in the absence of an adequate safety device warrants summary judgment on a Labor Law 240(1) cause of action.

 

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HERE PLAINTIFF ADEQUATELY ALLEGED A RELETTING FEE (TWO MONTHS RENT) IN A LEASE BUYOUT AGREEMENT VIOLATED REAL PROPERTY LAW SECTION 227 WHICH PROVIDES THAT IF THE LANDLORD EXPEDITIOUSLY RELETS THE PROPERTY THE OUTGOING TENANT MAY OWE NOTHING AT ALL; PLAINTIFF SUCCESSFULLY ALLEGED THE RELETTING-FEE CLAUSE VIOLATED THE COVENANT OF GOOD FAITH AND FAIR DEALING (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff adequately alleged the reletting fee (two months rent) in a lease buyout agreement violated the Real Property Law and thereby violated the covenant of good faith and fair dealing:

… Real Property Law § 227-e expressly provides, “Any provision in a lease that exempts a landlord’s duty to mitigate damages under this section shall be void as contrary to public policy.” Under Real Property Law § 227-e, if a landlord’s reletting efforts succeed expeditiously, a tenant may not owe anything at all, as plaintiff alleges should have been the case here.

At this stage the allegations are sufficient to sustain plaintiff’s claim that the lease’s reletting fee and the lease buyout agreement violate Real Property Law § 227-e, which, if established, would constitute a breach of the covenant of good faith and fair dealing. The covenant, implied in all New York contracts, requires the parties to avoid doing “anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” and includes all “promises which a reasonable person in the position of the promisee would be justified in understanding were included” … . As the amended complaint adequately alleges, a promise not to charge amounts barred by Real Property Law § 227-e is among those promises. Desai v Ninety Five Wall St. LLC, 2026 NY Slip Op 06198, First Dept 10-22-26

Practice Point: Real Property Law section 227 provides that if a landlord successfully relets the premises expeditiously, the outgoing tenant may owe the landlord nothing. Therefore a lease buyout agreement which requires a reletting fee (two months rent) may impose a charge barred by Real Property Law 227 and thereby violate the covenant of good faith and fair dealing.

 

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THE “GUARANTY LAW,” ENACTED BY THE NYC COUNCIL DURING COVID, DID NOT VIOLATE THE CONTRACTS CLAUSE OF THE U.S. CONSTITUTION (DISAGREEING WITH THE SOUTHERN DISTRICT); THE GUARANTY LAW PRECLUDED THE ENFORCEMENT OF PERSONAL LIABILITY GUARANTIES OF CERTAIN COMMERCIAL LEASES FOR 16 MONTHS (FIRST DEPT)

The First Department, in a full-fledged opinion by Justice Rosado, over a dissenting opinion, determined the “guaranty law,” enacted during COVID, did not violate the Contracts Clause of the US Constitution:

This case calls on us to determine the constitutionality of New York City Administrative Code § 22-1005, commonly referred to as the “guaranty law.” Enacted by the New York City Council in the early stages of the COVID-19 pandemic, the guaranty law precluded the enforcement of personal liability guaranties of certain commercial leases for a statutorily prescribed 16-month period. Principally, we are asked to decide whether this law, which the City Council passed as a means of mitigating the economic fallout of the public health crisis and to help small business owners avoid personal bankruptcy, impermissibly impairs existing contractual obligations in violation of the Contracts Clause of article I, section 10 of the United States Constitution. … [W]e conclude that the guaranty law does not violate the Contracts Clause.

[Overview of the facts:]

… [T]he landlord entered into a lease agreement with the tenant to rent the lower level of its building … for a 10-year term expiring on August 31, 2025. As principal of the tenant, a gallery that conducts shows for artists and sells artwork, the guarantor signed a “good guy” guaranty, agreeing to personally guaranty the tenant’s obligations under the lease. …

In March 2020, the tenant stopped paying rent, and by email dated November 1, 2020, the guarantor informed the landlord that the tenant intended to surrender the space back to the landlord on November 30, 2020. The tenant agreed to forfeit the security deposit to “settle up,” and by email dated December 7, 2020, the guarantor informed the landlord that the tenant had closed the gallery and returned the keys that day.

The landlord commenced this action against the tenant and the guarantor, asserting causes of action for (1) breach of lease, (2) breach of guaranty, (3) attorneys’ fees under the guaranty, and (4) attorneys’ fees under the lease. The landlord sought to enforce the lease and personal guaranty … . 513 W. 26th Realty LLC v George Billis Galleries, Inc., 2026 NY Slip Op 06058, First Dept 10-20-26

 

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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE HAD THE GREEN LIGHT AND WAS GOING STRAIGHT; PLAINTIFF WAS IN THE INTERSECTION MAKING A LEFT TURN FROM THE ONCOMING LANE; THERE WAS A QUESTION OF FACT ABOUT WHO HAD THE RIGHT OF WAY UNDER THE VEHICLE AND TRAFFIC LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact concerning which of the two vehicles which collided had the right of way. Defendant had the green light and was driving straight. Plaintiff was making a left turn across defendant’s lane. Pursuant to Vehicle and Traffic Law section 1141, if plaintiff was in the process of turning when the light turned green, plaintiff would have had the right of way:

Plaintiff argues that defendant was required under Vehicle and Traffic Law § 1111 to yield the right-of-way because plaintiff’s vehicle was in the intersection before defendant’s vehicle … . Vehicle and Traffic Law § 1111 provides, in relevant part, that traffic facing a steady green signal — here defendant — may proceed straight but shall yield the right of way to other traffic lawfully within the intersection at the time the signal is exhibited. Plaintiff testified that he almost completed his left turn through the intersection when he first saw defendant. The evidence does not conclusively establish which vehicle was required to yield. Moreover, both parties testified that the truck blocked the intersection and prevented them from being able to observe oncoming traffic.

Additionally, under Vehicle and Traffic Law § 1143, a driver “about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Plaintiff contends that defendant was required to yield because defendant attempted to enter the roadway from the bicycle and parking lanes to get around the truck. However, the record does not provide conclusive evidence of each vehicle’s location leading up to the accident and which party ultimately had a duty to yield. Accordingly, there are questions of fact precluding summary dismissal of plaintiff’s complaint. Sanchez-Rodriguez v Bruce, 2026 NY Slip Op 06077, First Dept 10-20-26

Practice Point: In an intersection accident case where one vehicle is traveling straight through the intersection on green and the oncoming vehicle is in the intersection making a left turn when the light changed, the vehicle which is in the intersection first has the right of way (Vehicle and Traffic Law 1141).

 

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HERE THE BORROWER DIED AND DEFENDANT INHERITED THE PROPERTY SUBJECT TO THE BORROWER’S MORTGAGE; THE BANK’S FAILURE TO COMPLY WITH THE NOTICE OF FORECLOSURE REQUIRMENTS IN RPAPL 1304 IS A DEFENSE WHICH IS PERSONAL TO THE BORROWER; IT IS NOT AVAILABLE TO THE DEFENDANT, A “STRANGER TO THE NOTE AND MORTGAGE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s failure to comply with RPAP 1304 (notice of foreclosure) is a personal defense to the borrower and does not apply to a stranger to the note and mortgage. Here the borrower died and defendant inherited the property:

Supreme Court should have granted plaintiff’s motion for summary judgment and an order of reference because defendant lacks standing to raise a defense based on plaintiff’s failure to comply with RPAPL 1304. Plaintiff does not dispute that the loan was a home loan subject to the statute and that, therefore, Wells Fargo needed to comply with it as a condition precedent to bringing this action. However, “[n]oncompliance with RPAPL 1304 . . . in a mortgage agreement [is a] personal defense[] that may not be raised by parties who are strangers to the subject note and mortgage” … . Here, once plaintiff discontinued the action as against the father’s estate, the case continued against defendant solely in his individual capacity as current owner of the property. Even though defendant remains an obligor in the sense that he acquired the property subject to his father’s mortgage, he is no different from any other transferee of property subject to a mortgage, and thus he is a stranger to the note and mortgage instruments and lacks standing to raise an RPAPL 1304 defense, which is personal to the borrower … . Wilmington Sav. Fund Socy. v Lopez, 2026 NY Slip Op 06037, First Dept 10-15-26

Practice Point: A bank’s failure to comply with the notice of foreclosure requirements in RPAPL 1304 is a defense which is personal to the borrower. Here the defense could not be raised by defendant who inherited the property from the borrower. Defendant was a “stranger to the note and mortgage.”

 

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DEFENDANT EMPLOYER’S FAILURE TO ENGAGE IN COOPERATIVE DIALOGUE REGARDING ACCOMMODATION FOR THE DISABLED PLAINTIFF WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S NYC HUMAN RIGHTS LAW CLAIM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the disabled plaintiff was intitled to summary judgment on his NYC Human Rights Law claim because defendant-employer failed to engage in a cooperative dialogue regarding accommodation for his disability:

… [P]laintiff is entitled to summary judgment on his City HRL claim based on defendant’s failure to engage, within a reasonable time, in a cooperative dialogue regarding his accommodation, as the record presents no issues of fact as to defendant’s failure to engage plaintiff in a cooperative dialogue once defendant became aware of his condition (see Administrative Code of City of NY §§ 8-102; 8-107[28][a] …). Contrary to defendant’s contention, an employer’s failure “to engage in a good faith interactive process is . . . independently actionable under the [City] HRL” … . Kocher v Mount Sinai Hosp., 2026 NY Slip Op 06007, First Dept 10-15-26

Practice Point: An employer’s failure to engage in cooperative dialogue with a disabled worker about accommodation for the disability violates the NYC Human Rights Law.

 

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DENIAL OF DEFENDANT’S MOTION TO SERVE A LATE ANSWER WAS AN ABUSE OF DISCRETION; THE DELAY WAS SHORT (18 DAYS), CREATED NO PREJUDICE, AND THE LAW OFFICE FAILURE WAS REASONABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Husain’s) motion to serve a late answer should have been granted:

The 18-day delay in answering the complaint was relatively short and plaintiff suffered no prejudice from the delay; indeed, Husain has already been deposed by the wife’s counsel … . In addition, the law office failure that occasioned the delay was reasonable, and there is no evidence that it was due to willfulness. Husain’s counsel explained that he inadvertently missed the deadline for answering the amended complaint because of work obligations related to this action — namely, preparing for and participating in an April 10, 2025 arbitration hearing concerning related claims, as well as preparing for a June 2025 trial in this action — and because of a break for a religious holiday … . Given the surrounding circumstances, Supreme Court should have granted the motion, especially in light of the strong public policy in favor of resolving cases on the merits … .Dalessandro v Dalessandro, 2026 NY Slip Op 06000, First Dept 10-15-26

Practice Point: Consult this decision for insight into the factors a court should consider when ruling on a motion to serve a late answer.

 

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PLAINTIFF’S HUSBAND ALLEGEDLY BECAME INTOXICATED AT DEFENDANT’S RESTAURANT, FELL DOWN A STAIRCASE AND DIED FROM HIS INJURIES; PURSUANT TO THE DRAM SHOP ACT, PLAINTIFF WIFE SUED THE RESTAURANT BOTH INDIVIDUALLY AND AS EXECUTOR OF DECEDENT’S ESTATE; HER INDIVIDUAL SUIT SURVIVED DISMISSAL; BUT THE SUIT ON BEHALF OF DECEDENT’S ESTATE WAS DISMISSED; AN INTOXICATED PERSON, OR THE ESTATE OF AN INTOXICATED PERSON, CAN NOT SUE UNDER THE DRAM SHOP ACT FOR INJURIES RESULTING FROM INTOXICATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Vera, the widow of the allegedly intoxicated decedent, could sue under the Dram Shop Act individually, but not as a representative of the decedent’s estate. Decedent fell down a staircase at defendant restaurant (Shuko):

In this Dram Shop Act action, plaintiffs allege that defendant Shuko, a restaurant, repeatedly served alcoholic beverages to the decedent, causing his intoxication and subsequent fall down a staircase inside the restaurant. The decedent sustained severe injuries which, according to plaintiffs, later resulted in his death. Vera, who is the decedent’s widow, is suing both in her individual capacity and as executor of the decedent’s estate, and is seeking damages, inter alia, for loss of support. * * *

…Vera’s allegations that Shuko sold alcohol to the decedent despite his being visibly intoxicated, and that she was personally injured by the loss of means of support is sufficient to survive a motion to dismiss … . …

However, while “[t]he Dram Shop Act creates a cause of action in favor of a third party injured or killed by an intoxicated person, [ ] it does not create a cause of action in favor of the intoxicated person” … . Accordingly, “an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … . The second cause of action against defendant Shuko therefore fails to state a cause of action insofar as it is asserted on behalf anyone other than plaintiff Vera individually. Vera v BH Broadway Owner LLC, 2026 NY Slip Op 05921, First Dept 10-13-26

Practice Point: Here the Dram Shop Act was applied where an intoxicated restaurant patron fell down a restaurant staircase and subsequently died from his injuries. Decedent’s wife could sue the restaurant under the Dram Shop Act in her individual capacity for loss of support. However, decedent’s wife could not sue under the Dram Shop Act on behalf of the decedent’s estate. …  “[A]n intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … .

 

DEFENDANTS REPUDIATED THE HOME-RENOVATION CONTRACT WHEN THEY SUBMITTED A PROPOSED CHANGE ORDER REQUESTING ADDITIONAL PAYMENTS AND THREATENED TO STOP WORK IF PLAINTIFFS DID NOT AGREE; THE REPUDIATION ENTITLED PLAINTIFFS TO DAMAGES FOR TOTAL BREACH (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants (Star) repudiated the home-renovation contract when they submitted a proposed change order and threatened to stop work unless paid in accordance with the change order. The repudiation entitled plaintiffs to damages for a total breach:

On January 14, 2022, Star sent plaintiffs a proposed “Change Order 11,” which sought payment of $117,200 for overhead allegedly incurred between September and December 2021 and additional monthly payments of $29,300 starting in January 2022 through the project’s conclusion. Plaintiffs refused to approve Change Order 11 and, by January 24, 2022, Star substantially ceased performing on the project. * * *

Plaintiffs are entitled to summary judgment on their breach of contract claim because they proved as a matter of law that defendants repudiated the contract. “[W]hen a party repudiates contractual duties prior to the time designated for performance and before all of the consideration has been fulfilled, the repudiation entitles the nonrepudiating party to claim damages for total breach” … . Here, the record establishes that defendants repudiated the contract by issuing a change order requesting additional payments followed by a threat to not return to the job unless plaintiffs agreed to pay the initial amount demanded, which threat was fulfilled when they abandoned the project … . Ho v Star Contrs., Inc., 2026 NY Slip Op 05908, First Dept 10-13-26

Practice Point: Here the defendants, by demanding more payments and threatening to stop work if their demands were not met, repudiated the home-renovation contract entitling plaintiffs to damages for total breach.

 

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