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PETITIONERS, THE NEW YORK TAXI WORKERS ALLIANCE, HAD STANDING TO CONTEST THE NYC TAXI AND LIMOUSINE COMMISSION’S PILOT PROGRAM WHICH WOULD ADD 2500 FOR-HIRE VEHICLES TO THE CITY STREETS; PETITIONERS DEMONSTRATED THE ADDED VEHICLES WOULD REDUCE MEMBERS’ INCOME (INJURY-IN-FACT) IN VIOLATION OF A LOCAL LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the petitioners, the New York Taxi Workers Alliance and two individual drivers, had standing to challenge a pilot program initiated by the NYC Taxi and Limousine Commission as violating a Local Law. The pilot program would put 2500 more for-hire vehicles (FHV’s} on the street. Petitioners argued standing based on evidence the pilot program will lower the income of the members of the Taxi Workers Alliance. Supreme Court had held the loss-of-income claim was speculative:

… [P]etitioners established both an injury in fact and that their alleged harm satisfies the zone of interest requirement, and they therefore have standing.

… [P]etitioners allege a concrete, particularized harm: a loss of income and a deterioration of driver well-being occasioned by the introduction or potential introduction of additional vehicles into the for-hire market. That harm is neither speculative nor conjunctural; rather, it is well-demonstrated by the legislative facts underpinning Local Law 147, which facts are based, in part, on industry data. Moreover, petitioners’ alleged harm is supported by the findings of the Committee on For-Hire Vehicles as expressed in their reports. The legislative materials evince a clear connection between the number of FHVs on the streets and driver income: when the number of FHVs increases without a corresponding increase in passenger demand, driver income decreases. * * *

… [P]etitioners demonstrated that the alleged harms of loss of income and deterioration of driver well-being fall within the zone of interests or concerns promoted or protected by Local Law 147. Two of the principal interests or concerns expressly promoted or protected by the law are driver income and driver well-being (see Administrative Code § 19-550[a]; 35 RCNY 59A-06[a][1]), and the significant legislative history of Local Law 147 confirms that the City Council was concerned with the human costs associated with the exceptional growth in the FHV market, particularly drivers’ ability to earn a living. Matter of New York Taxi Workers Alliance v New York City Taxi & Limousine Commission, 2025 NY Slip Op 06551, First Dept 11-25-25

Practice Point: To have standing to challenge a local law, the challenger must demonstrate an injury-in-fact and the injury is within the scope of the protections afforded by the local law.

 

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DEFENDANT WAS COOPERATIVE DURING HIS ARREST; HIS SUBSEQUENT RESISTANCE, THEREFORE, DID NOT CONSTITUTE “RESISTING ARREST;” INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s resisting-arrest conviction was against the weight of the evidence and dismissed the indictment. Defendant was cooperative when he was placed under arrest. His subsequent resistance, therefore, did not constitute resisting arrest:

As the People concede, defendant’s conviction of resisting arrest was against the weight of the evidence … . The undisputed evidence established that defendant was cooperative when he was placed under arrest, handcuffed, physically restrained, and surrounded by police officers … . Defendant’s subsequent physical resistance does not constitute resisting arrest, as he could not have intentionally “prevented or attempted to prevent a police officer from effecting an authorized arrest” by doing so (Penal Law § 205.30). People v Nesmith, 2025 NY Slip Op 06555, First Dept 11-25-24

Practice Point: Any resistance by a defendant which occurs after arrest does not constitute the crime of “resisting arrest.”

 

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PLAINTIFF WAS INJURED WHEN SHE USED HER ARM TO KEEP THE ELEVATOR DOOR FROM CLOSING; DEFENDANTS DEMONSTRATED THE ELEVATOR WAS IN GOOD WORKING CONDITION TWO WEEKS BEFORE PLAINTIFF’S INJURY; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants (building owner and elevator company) were entitled to summary judgment dismissing the complaint which alleged the elevator doors slammed shut on plaintiff’s hand. A video showed that plaintiff extended her arm between the door frame and the elevator door to keep it from closing:

Movants sustained their initial burden of demonstrating that the elevator door was safe and code compliant at the time of the accident and that plaintiff’s conduct was the sole proximate cause of the accident. The report prepared by defendant … , approximately two weeks prior to the accident, found that the subject elevator was maintained commensurate with local industry practices and that the systems functioned at or near recommended standards. Moreover, the video of the incident, which plaintiff authenticated by testifying that it was a fair and accurate depiction of the events, showed that plaintiff extended her arm between the door frame and the elevator door to keep the door from closing. Such evidence was sufficient to demonstrate the absence of a triable issue of fact … . Ellerbee v 61 W. 62 Owners Corp., 2025 NY Slip Op 06386, First Dept 11-20-25

Practice Point: If you are injured using your arm or hand to stop an elevator door from closing and it is shown the elevator was working properly, your complaint will be dismissed. (But isn’t it foreseeable that people will try to stop an elevator door from closing with their hands, and shouldn’t there be a safety mechanism which would prevent the door from closing?)

 

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THE DISTRICT ATTORNEY’S DATASHEET IS AN ATTORNEY-WORK-PRODUCT WHICH IS NOT SUBJECT TO FOIL DISCLOSURE; BECAUSE PETITIONER DID NOT SUBSTANTIALLY PREVAIL IN THE FOIL PROCEEDINGS, PETITIONER WAS NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the District Attorney’s (D.A.’s) datasheet was an attorney-work-product which was not subject to a FOIL disclosure:

Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner’s FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney … . As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions … .

In light of this determination, the award of attorneys’ fees is unwarranted, as petitioner has not “substantially prevailed” in its appeal of respondent’s denial … . Furthermore, even had petitioner substantially prevailed, Supreme Court made no “find[ing] that the agency had no reasonable basis for denying access,” and thus, there was no basis for an award of attorneys’ fees to petitioner … . Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney’s Off., 2025 NY Slip Op 06283, First Dept 11-18-25

Practice Point: A FOIL request for a District Attorney’s datasheet will be denied because the datasheet is privileged (attorney-work-product).

 

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PLAINTIFF FELL GOING DOWN PERMANENT STEPS AFTER HE STEPPED OFF THE LADDER; THERE WAS NO LIABILITY UNDER LABOR LAW 240(1)—NO FAILURE OR ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no liability under Labor Law 240(1) because plaintiff fell going down permanent steps after he stepped off the ladder:

Plaintiff testified that on the day of his accident he was working in a meeting room that had projection screens, soundproof walls, and raised floors, including a platform for the speakers. The platform had two access points — one via a ramp and the other on the opposite side of the platform, via a two-step staircase. Plaintiff needed to work on the ceiling above the platform, so he placed his ladder on the platform near the staircase. After he completed his work, he descended the ladder and placed both feet on the platform floor. He then turned to walk down the two-step staircase, missed a step, and fell.

There is no liability pursuant to Labor Law § 240(1) where the plaintiff’s injuries are not related to the failure of a safety device, such as a ladder, to protect the plaintiff from a gravity-related hazard … . Where the “injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no [Labor Law § 240(1)] liability exists” … . Healy v Trinity Hudson Holdings, 2025 NY Slip Op 06278, First Dept 11-18-25

Practice Point: The failure of absence of a safety device is a prerequisite for liability under Labor Law 240(1). Here plaintiff safely stepped onto a permanent platform from the ladder and then fell going down permanent steps—no Labor Law 240(1) liability.​

 

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PLAINTIFF TESTIFIED HE WAS STANDING AT THE TOP OF AN UNSECURED A-FRAME LADDER WHEN IT MOVED AND HE FELL; THE FACT THAT THERE WERE NO WITNESSES DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR 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 in this A-frame ladder-fall case. Plaintiff was standing at the top of the unsecured ladder when it moved and he fell. The fact that there were no witnesses to the accident did not raise a question fact because plaintiff’s testimony was not contradicted and his credibility was not called into question:

Plaintiff testified at his deposition that he worked at the top of the ladder, which was unsecured, it suddenly moved and fell, causing him to land on the floor and injure his shoulder. Plaintiff also testified that after he fell from the ladder, he stood it back up before his supervisor returned. The supervisor stated that upon his return to the room, plaintiff, who was standing next to the upright ladder, told him that the ladder was shaky and had fallen because no one was holding it.

Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1). The evidence established that defendant failed to provide a safety device to ensure that the ladder, which plaintiff was instructed to use, would remain upright while he worked. The evidence also showed that plaintiff fell off the ladder when it shifted and fell … . This evidence was sufficient to establish a prima facie case, and plaintiff was not obligated to show that the ladder itself was defective … . Molina v Chatham Towers, Inc., 2025 NY Slip Op 06285, First Dept 11-18-25

Practice Point: To warrant summary judgment in a ladder-fall case, it is enough that the ladder was unsecured and moved. There is no need to show the ladder was defective.

 

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ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED A JUSTIFIABLE EXCUSE FOR NOT TIMELY FILING A NOTE OF ISSUE AFTER A NINETY-DAY DEMAND, PLAINTIFF DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; PLAINTIFF SUBMITTED AN AFFIDAVIT WHICH RELIED ON HEARSAY PROVIDED BY TWO SOURCES, BUT DID NOT SUBMIT AFFIDAVITS FROM THOSE SOURCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined, although plaintiff offered a justifiable excuse for failing to timely file a note of issue, plaintiff did not demonstrate a meritorious cause of action. Therefore the complaint should have been dismissed. The complaint alleged the defendants negligently failed to provide adequate mental health and substance abuse treatment to the decedent, who died of a drug overdose in a shelter owned and operated by defendants:

Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]). Plaintiff failed to respond within the 90-day period, resulting in defendants’ motions to dismiss for failure to prosecute.

Although plaintiff’s counsel offered a justifiable excuse for the failure to file a note of issue following defendants’ service of 90-day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants’ motions … . In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources … . Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based … , and, in any event, she did not show that defendants’ negligence was “a substantial cause of the events” resulting in her son’s death … . Felipe v Volunteers of Am.-Greater N.Y., 2025 NY Slip Op 06252, First Dept 11-13-25

Practice Point: In seeking to avoid dismissal of a complaint for failing to timely file a note of issue after a 90-day demand, a plaintiff must offer a justifiable excuse and demonstrate a meritorious cause of action. Here plaintiff’s counsel provided a justifiable excuse. But to demonstrate a meritorious cause of action plaintiff submitted an affidavit which relied on hearsay. Without affidavits from the sources of the hearsay, a meritorious cause of action was not demonstrated and the complaint should have been dismissed.

 

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THE PETITION ALLEGED THE DECEASED CO-TRUSTEE CONCEALED THE TRUST AND DISTRIBUTIONS TO THE TRUST BENEFICIARIES; PETITIONERS HAD STANDING TO SEEK DISGORGEMENT OF THE COMMISSIONS PAID TO THE DECEASED CO-TRUSTEE UNDER “BREACH OF FIDUCIARY DUTY” AND “FAITHLESS SERVANT” THEORIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition alleging Kendall Chen, the deceased co-trustee of his father’s trust, breached his fiduciary duty to the trust and to the trust beneficiaries, and alleging a “faithless servant” claim, should not have been dismissed. Kendall allegedly concealed the existence of the trust from the beneficiaries (his children). Petitioners had standing to seek disgorgement of the commissions paid to Kendall:

The petition alleged that Kendall actively subverted the trust’s stated purpose insofar as, from 2000 until 2016, he concealed from his children the existence of the trust and the joint bank accounts into which distributions from the trust were made for each grandchild, and converted a significant portion of those funds for his personal financial benefit. If proven, Kendall’s conduct constituted a breach of his fiduciary duty to the trust (as well as to his children), and the trust may recover the commissions paid to him at a time when he was a faithless servant, even if the trust suffered no damages … .

Indeed, the trust was damaged by Kendall’s receipt of commissions at a time when he allegedly breached his fiduciary duty to the trust, and it is for that reason that petitioners have standing to seek disgorgement of the commissions paid to Kendall from 2000 to 2015. The corpus of the trust was diminished by the payment of the commissions when Kendall was diverting to himself the distributions intended for his children. …

We reject the estate’s argument that the faithless servant claim is unpreserved. The doctrine has a “close relationship and overlap” with breach of fiduciary duty, which petitioners did raise before the motion court … .  Matter of Chen, 2025 NY Slip Op 06255, First Dept 11-13-25

Practice Point: Here it was alleged the co-trustee concealed the existence of the trust and distributions from the trust from his children, the beneficiaries of the trust. The petitioners had standing to seek disgorgement of the commissions paid to the co-trustee under “breach of fiduciary duty” and “faithless servant” theories.

 

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​ IN THIS FORECLOSURE ACTION, THE REQUEST FOR A SETTLEMENT CONFERENCE PURSUANT TO CPLR 3408 WAS NOT APPROPRIATE BECAUSE THE BORROWER WAS DECEASED; BECAUSE, UNDER THE FACTS, A SETTLEMENT CONFERENCE WAS NOT A PREREQUISITE FOR FILING A DEFAULT JUDGMENT, THE REQUEST FOR A CONFERENCE DID NOT HOLD THE FORECLOSURE ACTION IN ABEYANCE AND IT SHOULD HAVE BEEN DISMISSED AS ABANDONED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the foreclosure action must be dismissed as abandoned. Plaintiff argued that its request for a settlement conference pursuant to CPLR 3408 constituted “the taking of proceedings” within one year of the default and therefore dismissal of the action as abandoned was precluded. The First Department agreed that, under the circumstances contemplated by CPLR 3408, requesting a settlement conference would demonstrate the action was not abandoned. Here, however, CPLR 3408 did not apply because the borrower was deceased and the action was brought by an executor. Because CPLR 3408 did not apply, the request for a settlement conference did not qualify as “the taking of proceedings:”

… [T]his foreclosure action must be dismissed as abandoned, because plaintiff’s argument is premised on its mistaken assumption that it was required to file an RJI seeking a mandatory conference before it could move for a default judgment. …

… CPLR 3408(a)(1) requires a mandatory settlement conference in “a residential foreclosure action involving a home loan” where “the defendant is a resident of the property subject to foreclosure.” A mandatory conference is not required where the defendant does not reside at the property when the foreclosure action is commenced … . Watkins, the borrower, was not a resident of the property when the foreclosure action was commenced because he died two years earlier.

Additionally, a mandatory conference is required for “a home loan” which is defined, among other things, to include a requirement that “[t]he borrower is a natural person” (RPAPL 1304[6][a][1][i]). Here, the borrower was deceased when plaintiff commenced this action against Thomas in her capacity of executrix of Watkins’s estate. Thomas is neither a borrower, nor a natural person in this context … . Municipal Credit Union v Thomas, 2025 NY Slip Op 06260, First Dept 11-13-25

Practice Point: In a foreclosure action, where the criteria for a settlement conference pursuant to CPLR 3408 are met, a request for a conference within one year of a default will constitute “the taking of proceedings” and preclude dismissal of the action as abandoned. However where, as here, CPLR 3408 is inapplicable because the borrower is deceased, the request for a settlement conference did not constitute “the taking of proceedings” and did not preclude a finding of abandonment.

 

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7/8 INCH HEIGHT DIFFERENTIAL BETWEEN THE FLOOR AND DOORWAY THRESHOLD WAS DEEMED TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; THE NYC BUILDING CODE, WHICH REQUIRES A HEIGHT DIFFERENTIAL OF NO MORE THAN 1/2 INCH, DID NOT APPLY TO THE HOME PURCHASED IN 1980 (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 7/8 height-differential between the floor and the threshold was trivial as a matter of law in thus slip and fall case. The court noted that the NYC Building Code, which requires a height-differential of no more than 1/2 inch did not apply to the home which was purchased in 1980:

The 7/8-inch height differential between defendant’s kitchen tile floor and the door saddle is readily discernible from the photographs authenticated by plaintiff, and the alleged defect had none of the characteristics of a trap or snare … . Plaintiff’s deposition testimony established that she was not distracted and could see the door saddle before the accident. Plaintiff had repeatedly walked over the saddle in the days leading up to her accident and had noticed the raised condition of the door saddle … . Defendant was not required to provide an expert’s affidavit to make a prima facie showing that the height differential was trivial … . * * *

“Existing buildings are generally exempt from the provisions of the current [New York City Building Code] unless there is substantial renovation or change in use” … . Defendant testified that the linoleum flooring adjacent to the door saddle was changed to tile in the “late” 1990s. However, plaintiff’s professional engineer made no showing that changing the flooring constituted a substantial renovation or change in use causing the 2008, 2010, and 2022 Building Codes to apply. Mejias v Basch, 2025 NY Slip Op 06137, First Dept 11-6-25

Practice Point: Here a 7/8 inch height differential between the floor and a doorway threshold was deemed trivial as a matter of law and the slip and fall case was dismissed. The Building Code, which requires a height differential of no more than 1/2 inch, did not apply because the home was purchased before that building code provision was enacted.

 

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