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THE LITIGATION PRIVILEGE WHICH APPLIES TO DEFAMATION ACTIONS WAS NOT APPLICABLE HERE IN THIS BREACH OF CONTRACT ACTION ALLEGING BREACH OF CONFIDENTIALITY AND NONDISPARAGEMENT PROVISIONS; DEFENDANT ALLEGEDLY THREATENED TO PROVIDE DAMAGING TESTIMONY IN ANOTHER ACTION INVOLVING PLAINTIFFS, IN WHICH DEFENDANT WAS NOT A PARTY, IF DEFENDANT’S DEMANDS WERE NOT MET (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was not entitled to immunity in this breach of contract action alleging breach of confidentiality and nondisparagement provisions. The immunity and privilege which applies to statements made in defamation litigation does not apply in breach of contract litigation:

Plaintiffs allege that defendant breached the confidentiality and nondisparagement provisions of their agreement when he threatened to provide damaging testimony in a separate action between plaintiffs and Reebok (a litigation to which defendant was not a party) if his demands in an unrelated arbitration with plaintiffs were not accepted. Plaintiffs further allege that when his demands were rejected, defendant acted on his threats, contacted Reebok, and offered to provide damaging false testimony in that action.

Defendant … argues … that the Court of Appeals’ recent holding in Gottwald v Sebert (40 NY3d 240 [2023]) bars plaintiffs’ action. In Gottwald, the court held that there is no “sham exception” to the litigation privilege in a defamation action, thus conferring absolute litigation privilege no matter the motivation for the suit … . The motion court agreed that Gottwald barred plaintiff’s action and granted defendant summary judgment on that basis.

Gottwald specifically holds that “absolute immunity from liability for defamation exists for . . . statements made . . . in connection with a proceeding before a court when such words and writings are material and pertinent to the questions involved” … . However, here, plaintiffs’ sole cause of action is for breach of contract, not defamation, and thus, Gottwald is not applicable. Moreover, the absolute litigation privilege granted by the Gottwald court was conferred upon parties to the suit. Gottwald does not speak to whether that privilege extends to individuals ancillary or collateral to the litigation, such as a potential witness.  TRB Acquisitions LLC v Yedid, 2025 NY Slip Op 03872, First Dept 6-26-25

Practice Point: The litigation privilege which applies in defamation actions was not applicable here in this breach of contract action where defendant threatened to give damaging testimony in another action involving plaintiffs in which defendant was not a party.

 

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IN THIS CLASS-ACTION-CERTIFICATION PROCEEDING ALLEGING FAILURE TO PROVIDE NOTICE OF PAY RATE AND PAY DAY AS REQUIRED BY LABOR LAW SECTION 195(1), THE COURT SHOULD NOT HAVE GRANTED CERTIFICATION FOR THE CLAIM FOR LIQUIDATED DAMAGES AND SHOULD NOT HAVE GRANTED THE REQUEST FOR THE SOCIAL SECURITY NUMBERS OF CLASS MEMBERS WHOSE CLASS-ACTION NOTICE WAS RETURNED AS UNDELIVERABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this class-action-certification proceeding concerning wage notice violations, noted that CPLR 901(b) prohibits class actions seeking liquidated damages and the request for social security numbers for class members whose notice was returned as undeliverable should not have been granted:

… [T]he court should not have granted class certification for the wage notice claims, which are based on the alleged failure to provide a notice of pay rate and pay day as required by Labor Law § 195(1), and seek liquidated damages, plus reasonable attorneys’ fees and costs under Labor Law § 198(1-b). Where, as here, defendant pleaded a Labor Law § 198 statutory affirmative defense to the wage notice claim, the court should have declined to grant certification by applying the CPLR 901(b) prohibition against class actions seeking liquidated damages … .

To the extent the court ordered defendants to provide the names, addresses, phone numbers, and email addresses of all class members, as well as social security numbers for all class members whose notice is returned as undeliverable without a forwarding address, the order is modified to deny the request for social security numbers. The court otherwise properly granted the request for phone numbers and e-mail addresses, which is a reasonable request to expedite class notification. Idahosa v MFM Contr. Corp., 2025 NY Slip Op 03762, First Sept 6-24-25

Practice Point: Where class-action notices are returned as undeliverable, the request for phone numbers and e-mail addresses is properly granted to expedite class notification, but the request for social security numbers should not be granted.

 

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THE DEFENDANT DID NOT SUBMIT ACTUAL MEASUREMENTS OF THE DEFECT WHICH CAUSED PLAINTIFF’S FALL; THE PHOTOGRAPHS AND THE TESTIMONY THAT THE DEFECT WAS ONE-INCH IN HEIGHT WAS NOT ENOUGH TO PROVE THE DEFECT WAS TRIVIAL AS A MATTER OF LAW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant did not demonstrate the defect which cause plaintiff’s fall was trivial as a matter of law. Plaintiff tripped over the raised edge of a cellar door in a sidewalk:

Defendant Teng Dragon, as the party seeking dismissal of the complaint on the basis that the alleged defect is trivial, “must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . While it is true that “there is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … , producing measurements of the defect together with evidence of the surrounding circumstances is required for a prima facie showing that the defect was trivial as a matter of law … . Photographs produced by the plaintiff appear to show a non-trivial defect in the raised cellar door, and the testimony of defendant Mazal Ubracha 101 LLC’s principal indicates a surface differential between the sidewalk and cellar door of approximately one inch. The Court of Appeals has made it clear that summary judgment should not be granted in a case in which “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Teng Dragon has not provided the actual measurements of the defect here, and thus, making every favorable inference in favor of the nonmovant plaintiff, has failed to establish its prima facie entitlement to summary judgment … . Weatherspoon v Mazal Ubracha 101 LLC, 2025 NY Slip Op 03662, First Dept 6-17-25

Practice Point: Here the defendant did not submit actual measurements of the defect over which plaintiff slipped and fell. Despite photographs of the defect and testimony it was one-inch in height, defendant did not prove the defect was trivial as a matter of law.

 

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PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN A CEILING TILE DROPPED, THE LADDER WIGGLED, AND PLAINTIFF FELL; PLANTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case. It was enough to demonstrate the A-frame ladder wiggled when a ceiling tile dropped unexpectedly and there was nothing for plaintiff to grab on to:

Plaintiff established prima facie entitlement to summary judgment on the Labor Law § 240(1) claim through his deposition testimony which showed that the A-frame ladder he was using to perform overhead ceiling-wiring work proved inadequate as a safety device … . Furthermore, we have repeatedly held that “‘[i]t is irrelevant that plaintiff inspected the ladder and found it to be in good order before using it, as [a] plaintiff is not required to demonstrate that the ladder was defective in order to make a prima facie showing of entitlement to summary judgment on his Labor Law 240(1) claim'” … . Plaintiff testified that he was using both hands to perform the overhead ceiling work, when he was suddenly “jolted” by an unexpected drop of a ceiling tile that he was handling, resulting in a “wiggle” in the ladder, which preceded his loss of balance and eventual fall, as there was nothing available for plaintiff to grab onto to brace himself against a fall.

Defendants fail to raise an issue of fact. Contrary to their contention, plaintiff’s fall from the ladder was “directly related to the work that he was performing, as opposed to his own misstep” or an unexplained loss of balance … . To the extent defendants argue that the ladder did not fall until plaintiff first lost his balance, such argument does not, based on the facts here, show that the ladder was an adequate safety device for plaintiff’s task (… [It is “no moment whether the ladder shook prior to plaintiff’s fall, or as defendants maintain, after plaintiff lost his balance and grabbed the top of it to steady himself. In either event, the ladder was an inadequate safety device”]). Daniello v J.T. Magen & Co. Inc., 2025 NY Slip Op 03649, First Dept 6-17-25

Practice Point: Here plaintiff was standing on an A-frame ladder when a ceiling tile dropped, the ladder wiggled, and plaintiff fell because there was nothing for him to grab on to. That is enough for summary judgment on the ground the ladder was not an adequate safety device. There is no need to demonstrate the ladder was defective.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION ALLOWING WARRANTLESS SEARCHES; THE CONDITION ALLOWING ALLOWING WARRANTLESS SEARCHES FOR DRUGS WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION (FIRST DEPT).

The First Department determined (1) a waiver of appeal does not preclude a challenge to a probation condition allowing warrantless searches, and (2) there was no justification for the condition allowing warrantless searches for drugs:

Defendant’s appeal waiver does not foreclose his challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home for weapons, drugs, and drug paraphernalia … , which also does not require preservation … . To the extent this condition authorized the Department of Probation to conduct warrantless searches for weapons, we find that it was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” … , “given that he was armed with a sharp object when he committed this violent offense” … .

However, the portion of the condition of probation authorizing warrantless searches by a probation officer for illegal drugs and drug paraphernalia “was not reasonably related to defendant’s rehabilitation” … . Defendant’s crime “did not appear connected to the sale or use of drugs” (id.), he was not “under the influence of any substance” when he committed the offense, and he “had no history of offenses involving substance abuse” … . People v Rivera, 2025 NY Slip Op 03654, First Dept 6-17-25

Practice Point: A wavier of appeal does not preclude a challenge to a probation condition allowing warrantless searches.

Practice Point: A condition of probation allowing warrantless searches for drugs is not appropriate where there is no history of drug offenses.

 

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THE SUPREME COURT’S PART RULES REQUIRED PLAINTIFF TO FIRST CONFERENCE THE MATTER BEFORE MOVING TO COMPEL DEFENDANTS TO COMPLY WITH DISCOVERY DEMANDS; THE FAILURE TO CONFERENCE THE MATTER, HOWEVER, IS NOT A VALID GROUND FOR DENYING THE MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike defendants’ answer or compel compliance with discovery demands should not have been denied on the ground plaintiff failed to first conference the matter as required by the court’s Part Rules:

… Supreme Court improvidently exercised its discretion in denying the motion on the ground that plaintiff failed to first conference the matter with the court in accordance with its Part Rules. The court may not condition the making of a motion on prior judicial approval … . Reyes v City of New York, 2025 NY Slip Op 03545, First Dept 6-10-25

Practice Point: Here plaintiff’s failure to comply with Supreme Court’s Part Rule requiring a conference before moving to compel discovery was not a valid ground for denying the motion. A court may not condition the making of a motion on prior judicial approval.

 

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MOTHER’S BOYFRIEND, WHO LIVED WITH MOTHER AND DAUGHTER FOR FIVE MONTHS BEFORE ABUSING THE DAUGHTER, MET THE CRITERIA FOR A “PERSON LEGALLY RESPONSIBLE FOR THE CHILD” AND WAS THEREFORE A PROPER PARTY IN THIS ABUSE/NEGLECT PROCEEDING; COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming Family Court’s abuse finding against mother’s live-in boyfriend, Robert, over a comprehensive two-justice dissent, determined Roberto met the criteria for “a person legally responsible” for the child, B.F. B.F. alleged Roberto touched her inner thigh and vagina. Both the majority and the dissenters go through the criteria for “a person legally responsible for the child” in great detail:

Family Court conducted a fact-finding hearing over several days. B.F. testified that Roberto lived with her and her mother for approximately five months. She stated that during the time they lived together, she and Roberto would “always talk to each other” and grew “very close.” * * *

B.F.’s mother testified that Roberto moved in a week after they started dating. Roberto came home around 6:00 p.m. and left around 7:00 a.m. for work. Roberto contributed $100 every week for rent, bills, and home expenses. * * *

The court credited the testimony of B.F. and her mother, which established that Roberto resided in the home for five months prior to the abuse.

The determination of whether a particular person has acted as the functional equivalent of a parent is a “fact-intensive inquiry which will vary according to the particular circumstances of each case” … . Factors to consider include “(1) ‘the frequency and nature of the contact,’ (2) ‘the nature and extent of the control exercised by the respondent over the child’s environment,’ (3) ‘the duration of the respondent’s contact with the child,’ and (4) ‘the respondent’s relationship to the child’s parent(s)'” … . These factors “are not meant to be exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination” … . The weight given to each factor depends on the facts and circumstances of the case … . Matter of B.F. v Administration for Children’s Servs., 2025 NY Slip Op 03393, First Dept 6-5-25

Practice Point: Consult this decision for an exhaustive discussion of the criteria for a “person legally responsible for the child” in the context of a neglect or abuse proceeding. Here mother’s boyfriend, who lived with mother and daughter for five months prior to the abuse of the daughter, was deemed to meet the criteria.

 

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NOTHING IN DEFENDANT’S CRIMINAL HISTORY INVOLVED SUBSTANCE ABUSE OR WEAPONS; THEREFORE THE PROBATION CONDITION THAT DEFENDANT SUBMIT TO SEARCHES OF HIS PERSON, VEHICLE AND HOME WAS STRUCK (FIRST DEPT).

The First Department, striking a probation condition, determined (1) the requirement that defendant submit to warrantless searches of his person, vehicle and home was not appropriate, and (2) the challenge to the probation condition survived defendant’s waiver of appeal:

Defendant’s challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home survives the appeal waiver … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted, and he had no history of offenses involving substance abuse or weapons” … . Accordingly, the consent-search condition was not necessary to ensure that he will lead a law-abiding life ( … see Penal Law § 65.10[1]), or reasonably related to defendant’s rehabilitation (see Penal Law § 65.10[2][l]), rendering the condition improperly imposed … . People v Avila, 2025 NY Slip Op 03286, First Dept 6-3-25

Practice Point: Where a defendant’s criminal history does not involve drugs or weapons, requiring defendant to submit to warrantless searches as a condition of probation is not supported.

 

WHETHER THE TRENCH WAS THREE OR SEVEN FEET DEEP, PLAINTIFF SHOULD HAVE BEEN PROVIDED WITH A LADDER OR A RAMP TO DESCEND INTO IT BUT WAS TOLD TO JUMP DOWN; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he jumped into an excavated trench. Plaintiff testified that the trench was five to seven feet deep and he asked for a ladder but was told to jump down. There was conflicting testimony about the depth of the trench which defendant claimed was 3 1/2 feet deep:

Plaintiff’s descent into the trench constituted an elevation-related hazard within the scope of Labor Law § 240(1) requiring a ladder or ramp for proper protection … . Accordingly, plaintiff made a prima facie case that Navesink and SLS violated Labor Law § 240(1) by failing to provide a ladder or ramp to enable him to safely climb down into the trench, where he was assigned to shovel soil to even out the landscape at the bottom of the trench.

In opposition, defendants failed to raise a triable issue of fact. The witnesses’ varying estimates of the depth of the excavated trench, ranging from around three feet to five feet to seven feet, do not present an issue of fact as to whether plaintiff’s accident resulted from a significant elevation differential … . McCormick v DiPersia, 2025 NY Slip Op 03019, First Dept 5-20-25

Practice Point: Here plaintiff was injured when he jumped into a trench. There was conflicting testimony about the depth of the trench, three to seven feet. Whether the depth was three feet or seven feet, defendant was required to provide a ladder or a ramp to descend into it. Therefore, plaintiff, who was told to jump down, was entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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THE PRESENTENCE INTERVIEW WAS CANCELLED DUE TO TECHNICAL DIFFICULTIES; THEREFORE THE PRESENTENCE REPORT WAS DEVOID OF INFORMATION ABOUT DEFENDANT’S EDUCATION, EMPLOYMENT, HEALTH STATUS, MENTAL HEALTH AND DEFENDANT’S MOTIVE; ALTHOUGH DEFENDANT WAS SENTENCED IN ACCORDANCE WITH THE PLEA AGREEMENT, THE DEFICIENT PRESENTENCE INVESTIGATION AND REPORT REQUIRED VACATION OF THE SENTENCE (FIRST DEPT).

The First Department, vacating defendant’s negotiated sentence, determined the failure to interview the defendant before creating the presentence report  was tantamount to the failure to conduct the mandatory presentence investigation. The defendant did not take any action to avoid the presentence interview which was scheduled but cancelled due to technical difficulties:

At sentencing, defense counsel confirmed that the presentence report was prepared without any interview because of technical difficulties. The court remarked this was “not unusual,” but directed that defendant be arraigned for sentence. In response to the court’s invitation for the parties to address any issues relevant to sentence, defense counsel stated only that he relied on the promised sentence. The court proceeded to impose sentence with no further discussion of the presentence report.

Presentence investigations of persons convicted of felonies are statutorily mandated, and a court may not pronounce sentence until it has received a written report of such an investigation (see CPL 390.20[1] …). The presentence report may be “the single most important document at both the sentencing and correctional levels of the criminal process” … , as it contains multiple categories of information concerning the defendant’s background and the subject offense … .

Because there was no presentence interview, the presentence report in this case was seriously deficient. The report was devoid of information regarding defendant’s education, employment history, health status, and mental health, each a statutorily prescribed category … . The report also noted that it had no information as to defendant’s motive. People v Pizzaro, 2025 NY Slip Op 03025, First Dept 5-20-25

Practice Point: A presentence report which is incomplete because the defendant was never interviewed requires vacation of the sentence, notwithstanding that the sentence was in accordance with the plea agreement.

 

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