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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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PLAINTIFF’S REQUEST TO PROCEED UNDER THE PSEUDONYM “JANE DOE” SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s request to proceed using the pseudonym “Jane Doe” should have been granted. Plaintiff is apparently suing her former employer, a charter school, contesting her termination, which apparently was based upon a video depicting plaintiff masturbating:

As to the merits, Supreme Court improvidently exercised its discretion in denying plaintiff’s request to proceed in this litigation under the pseudonym “Jane Doe” … . This action concerns information of a highly sensitive, intimate, and personal nature — namely, a video depicting plaintiff masturbating. Plaintiff’s affidavit establishes the serious psychological harm that disclosure of her role in this video caused her and would continue to cause her, as well as the potential impact on her career in education … . That plaintiff was able to obtain a new job in education after her termination by defendants is of no moment, as she may still need to apply for other jobs in future and it is not clear whether her current employer is aware of the circumstances of her termination.

Defendants do not identify any source of prejudice to them from allowing plaintiff to proceed by pseudonym, as they know who she is and therefore are not impeded in mounting a defense … . The public interest in disclosure of plaintiff’s identity is also minimal. Even if the charter school defendants were deemed public entities for these purposes (see Education Law § 2854[3][a], [c] …), that fact would not be dispositive, especially because plaintiff is not requesting that court records be sealed or public access denied … . Furthermore, the termination decision at issue here is not claimed to be the result of any government policy.

Plaintiff’s privacy interest outweighs the reputational interest of the individual defendants’ anonymity … . Jane Doe v KIPP N.Y., Inc., 2025 NY Slip Op 02718, First Dept 5-6-25

Practice Point: Consult this decision for a brief discussion of the factors which control whether a plaintiff can sue under a pseudonym, “Jane Doe” in this case.​

 

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THE PORT AUTHORITY DEMONSTRATED IT WAS NOT LIABLE FOR PLAINTIFF’S DECEDENT’S DEATH BY SUICIDE; PLAINTIFF’S DECEDENT CLIMBED OVER A FOUR-FOOT-TALL PEDESTRIAN RAILING AND JUMPED OFF THE GEORGE WASHINGTON BRIDGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, over a dissent, affirming summary judgment dismissing the complaint, determined the Port Authority was not liable for the plaintiff’s decedent’s death by suicide.  Plaintiff’s decedent climbed over the four-foot-tall pedestrian railing and jumped off the George Washington Bridge (GWB). Plaintiff alleged the Port Authority was negligent in failing to install suicide prevention barriers along the pedestrian walkways:

In this action to recover damages for wrongful death, plaintiff seeks to hold defendant the Port Authority of New York and New Jersey liable for the death of the decedent, who died by suicide after jumping off the George Washington Bridge (GWB). To fully capture the nature of this appeal, however, it is pertinent to first discuss that the issue here is not whether the Port Authority’s alleged negligence arose out of the performance of a governmental rather than a proprietary function; this Court has already determined that the Port Authority, as owner of the GWB, was acting in a proprietary capacity at the time this claim arose and therefore that the ordinary rules of negligence apply. In the appeal now presented to us, the Port Authority’s expert engineer opines that the engineering concerns associated with modifying the 100-year-old bridge justified the steps taken and the interim measures implemented, but also opines that reasonable engineering judgment delayed the implementation of the safety mechanism that plaintiff contends would have ultimately prevented the decedent’s death by suicide. We therefore consider whether, given the record presented, the Port Authority has established its prima facie burden under ordinary rules of negligence. For the reasons that follow, we find that the Port Authority established that the pedestrian walkways on the bridge were safe for the public at large, and the steps taken, including additional interim measures implemented prior to this incident to help individuals who, like the decedent, were suffering from suicidal ideations, were reasonable in light of the complexity and size of the bridge. Donaldson v Port Auth. of N.Y. & N.J., 2025 NY Slip Op 02719, First Dept 5-6-25

 

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THE DOCTRINE OF ABATEMENT AB INITIO REMAINS VALID; WHERE A DEFENDANT DIES BEFORE THE CONVICTION BECOMES FINAL THROUGH THE APPELLATE PROCESS VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT IS REQUIRED; HERE BOTH DEFENDANTS HAD BEEN CONVICTED AND DIED BEFORE SENTENCING (FIRST DEPT).

The First Department affirmed Supreme Court in two consolidated cases in which the People unsuccessfully argued the doctrine of abatement ab initio should no longer be followed. The doctrine provides that where a defendant dies before the appellate process is complete the conviction is vacated and the indictment dismissed:

In these consolidated cases (People v Ricardo Cruciani and People v Jessie Nowell), the People, as the appellant, raise similar questions: Whether we should decline to follow, in the particular circumstances of each case, the common-law doctrine of abatement ab initio, which was first pronounced by the Court of Appeals in People v Mintz (20 NY2d 770 [1967]). The abatement ab initio doctrine seeks to protect a defendant’s constitutional due process rights that are afforded by appellate review of a conviction (see People v Matteson, 75 NY2d 745, 747 [1989]). Under this doctrine, the death of a defendant whose conviction has not become final through the appellate process results in the abatement of not only any pending appeal but also all proceedings from the case’s inception. In Cruciani, defendant’s conviction resulted from a jury verdict, but he died before sentencing. In Nowell, defendant’s conviction resulted from a guilty plea, but he died before sentencing. In each case, the trial court granted defense counsel’s motion to vacate the conviction and dismiss the indictment pursuant to the abatement ab initio doctrine. People v Cruciani, 2025 NY Slip Op 02735, First Dept 5-6-25

Practice Point: The doctrine of abatement ab initio requires the vacation of the conviction and dismissal of the indictment where a defendant dies before the appellate process is complete.

 

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THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was milled or scarified such that the manhole covers extended above the surface of the road. Although asphalt was placed around the manhole (called ramping) so that the wheels on one side of a vehicle could pass over it, here the wheels on both sides of the manhole were on the milled surface and undercarriage of the car apparently struck it, causing the windshield to crack and the air bags to deploy:

[Defendant’s witness] could not say whether that ramping made it safe [for a vehicle to traverse directly over the manhole, with the wheels completely to the side of the entire width of the manhole’s ramping. It is this condition that plaintiff alleges was dangerous and defective, and the City adduced no evidence to refute that allegation. Accordingly, whether the City’s work — the ramping of the manhole — “immediately resulted in the existence of a dangerous condition,” thus rendering the City liable to plaintiff for her injuries, is a question of fact for the jury … . …

The City’s argument that the court erred in rejecting its argument sub silentio that it is nonetheless entitled to summary judgment dismissing the complaint as against it on the ground that the condition was open and obvious is unavailing. Whether a dangerous or defective condition is open and obvious relates to the duty to warn of the hazard, not the duty to neutralize it … . Summary judgment may only be granted on an open-and-obvious defense “when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence”; otherwise, the inquiry “is generally fact-specific and thus usually a jury question” … . Timmons v Praylow, 2025 NY Slip Op 02744, First Dept 5-6-25

Practice Point: The question whether a condition, here a raised manhole cover, is open and obvious applies to the duty to warn, not the duty to neutralize a hazard, and is rarely appropriate as a basis for summary judgment.

Practice Point: The written-notice requirement, which is often a condition precedent for a negligence action against a municipality stemming from a road-condition, does not apply where, as here, it is alleged the municipality created the dangerous condition (a raised manhole cover).

 

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TENANT WAS PRECLUDED FROM ASSERTING A CLAIM FOR BREACH OF THE COVENANT OF QUIET ENJOYMENT BECAUSE THE TENANT HAD ALREADY STOPPED PAYING RENT WHEN IT VACATED THE PREMISES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant’s claim for breach of the covenant of quiet enjoyment was precluded because the tenant was in default (failure to pay rent) at the time the tenant vacated the premises:

Under … the lease between the landlord and defendant tenant … , the tenant was entitled to “peaceabl[y] and quietly enjoy the premises,” which were in the basement of the landlord’s building, as long as it performed its obligations under the lease, which included the obligation to pay rent. Under … the lease, the tenant waived the provisions of Real Property Law § 227. The premises were shut down in March 2020 under Executive Order 202.7 (9 NYCRR 8.202.7) in response to COVID. At that time, the tenant stopped paying rent. * * *

The tenant is precluded from asserting a claim for breach of the covenant of quiet enjoyment because it was already in default of its obligation to pay rent at the time it vacated the leased premises. The law is clear that, in order for a tenant to assert a claim for breach of the covenant of quiet enjoyment, the tenant must have performed all obligations which are a condition precedent to its right to insist upon the covenant … . When a tenant vacates the premises after defaulting on its obligation to pay rent, it is deprived of its right to insist upon the performance of the covenant of quiet enjoyment … . By the express terms of the lease, the tenant was obligated to pay rent while remaining in possession of the premises as a condition precedent to receiving the benefit of quiet enjoyment of the premises. Since the tenant remained in possession of the premises without paying rent, the tenant has failed to satisfy the condition precedent in the lease and is thereby precluded from claiming a breach of the covenant of quiet enjoyment … . 558 Seventh Ave. Corp. v E&B Barbers Inc., 2025 NY Slip Op 02546, Frist Dept 4-29-25

Practice Point: Here, under the terms of the lease, payment of rent was a condition precedent for the benefit of quiet enjoyment of the premises. Therefore the tenant, who had stopped paying rent at the time the premises were vacated, could not make a claim for breach of the covenant of quiet enjoyment.

 

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THE RAISED SIDEWALK FLAG WAS NOT A “TRIVIAL DEFECT” AS A MATTER OF LAW, YET PLAINTIFF’S ATTORNEYS DID NOT SUBMIT WRITTEN OPPOSITION TO THE SUMMARY JUDGMENT MOTION IN THE SLIP AND FALL CASE WHICH WAS DISMISSED; PLAINTIFF THEREFORE RAISED A QUESTION OF FACT IN THIS LEGAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court in this legal malpractice action, determined there was a question of fact in the underlying slip and fall case which plaintiff’s attorneys could have, but failed to, raise. The raised sidewalk flag which caused plaintiff’s fall was not trivial as a matter of law, as the judge in the slip and fall case ruled. Plaintiff’s attorneys did not submit written opposition to the defendants’ summary judgment in the slip and fall case:

There is no “per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 510). A “holding of triviality must be based on all the specific facts and circumstances of the case, not size alone” … . Thus, the “issue is generally a jury question because it is a fact-intensive inquiry” … .

Even assuming defendants met their initial burden of proof in showing that plaintiff could not prevail on her negligence claim, plaintiff raised an issue of fact in opposition. Plaintiff estimated that the elevation differential of the defect was an inch and a half or “a couple of inches” at the time of her accident, and the adjacent building’s superintendent testified that the elevation was about half an inch to one inch on the day of the accident. Administrative Code of the City of New York requires remediation for sidewalk flags with a height differential of one-half inch or more (see Administrative Code § 19-152[a][4]). Violation of that code is “not per se non-trivial . . . [but] is one factor to consider when deciding the issue of triviality” … . Barrett v Sacks & Sacks, LLP, 2025 NY Slip Op 02547, First Dept 4-29-25

Practice Point: Plaintiff’s attorneys could have successfully precluded summary judgment in the underlying slip and fall case but failed to submit written opposition to the summary judgment motion. That failure raised a question of fact in the instant legal malpractice action.

 

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ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).

The First Department, reversing Supreme Court in this breach of contract action, determined that, although the defendant’s attorney-affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because plaintiff never objected to the admissibility of the documents and relied on those documents in opposing defendant’s motion:

Supreme Court improvidently concluded that defendant’s documentary evidence was not admissible for purposes of its motion. An attorney’s affirmation “‘may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence,’ so long as the [affirmation] ‘constitute[s] a proper foundation for the admission of the records'” … . The court was correct that defendant’s attorney, in her affirmation, did not lay a foundation for the admission of the records, such as her personal knowledge or her certification of the documents as true and complete copies of the originals. However, plaintiff never objected to the admissibility of any of the documents annexed to the attorney’s affirmation … and relied on the same documents in opposition to defendant’s motion … . AWL Indus., Inc. v New York City Hous. Auth., 2025 NY Slip Op 02402, First Dept 4-24-25

Practice Point: An attorney affidavit can be used as a vehicle for the admission of documentary evidence if the affidavit lays a proper foundation.

Practice Point: Here, although the defendant’s attorney affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because the plaintiff did not object to them and relied on them in opposition to the defendant’s motion.

 

THE INDUSTRIAL CODE PROVISIONS RELIED UPON BY PLAINTIFF DO NOT APPLY TO A SLIPPERY SUBSTANCE ON A LADDER, REQUIRING THE DISMISSAL OF A LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined certain provisions of the Industrial Code did not apply to a slippery substance on a ladder, requiring the dismissal of a Labor Law 241(6) cause of action:

The court should have dismissed the Labor Law § 241 (6) claim … on the basis that the Industrial Code provisions on which plaintiffs rely are inapplicable or abandoned. Industrial Code (12 NYCRR) § 23-1.7 (d) does not apply to this case because the ladder from which plaintiff fell “was not ‘a floor, passageway, walkway, scaffold, platform or other elevated working surface'” … . 12 NYCRR 23-1.7 (e) (1) and (2) do not apply because there is no evidence that Thomas “tripped over any materials, debris or equipment” … . 12 NYCRR 23-1.21 (b) (3) (iv) is limited to structural defects in ladders … and does not apply to the slippery substance on the ladder in this case … . D’Angelo v Legacy Yards Tenant LLC, 2025 NY Slip Op 02409, First Dept 4-24-25

Practice Point: A ladder is not a “floor, passageway, walkway, scaffold, platform or other elevated working surface” within the meaning of the Industrial Code section 12 NYCRR) § 23-1.7 (d).

Practice Point: Industrial Code sections12 NYCRR 23-1.7 (e) (1) and (2) address tripping over “materials, debris or equipment” and does not apply to a slippery substance on a ladder.

Practice Point: Industrial Code section 12 NYCRR 23-1.21 (b) (3) (iv) applies to structural defects in ladders and does not apply to a slippery substance on a ladder.

 

STANDING ON AN INVERTED BUCKET CONSTITUTED A “PHYSICALLY SIGNIFICANT” HEIGHT-DIFFERENTIAL FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240(1); INJURY WHILE PREVENTING A FALL IS COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff’s injury, suffered as he tried to maintain his balance while standing on an inverted bucket, was covered by Labor Law 240(1), despite the fact that plaintiff did not actually fall:

Plaintiff … testified at his deposition that he sustained biceps and shoulder injuries while installing a heavy marble slab on a bathroom wall during a construction project. To install the marble slab, plaintiff and his coworker were required to lift the slab onto two 15-inch-high inverted buckets set up on opposite ends of the slab, then stand on the buckets and attach two suction cups to the slab to lift it to the height of the bathroom ceiling. Plaintiff testified that his injury occurred as he was standing in an awkward position, trying to maintain his balance, because the “buckets were wobbling.” …

… [T]he record presents an issue of fact as to whether plaintiff was injured while trying to avoid falling from the bucket while lifting the marble slab, and whether the injury could have been prevented if defendants had provided an adequate protective device to enable him to accomplish his work at a height … . Because Labor Law § 240(1) applies so long as the “harm directly flowed from the application of the force of gravity to an object or person” … , plaintiff’s claim is not defeated by the fact that he did not actually fall. On the contrary, this Court has consistently held that the statute applies where a worker was injured in the process of “preventing himself from falling” … .

We reject defendants’ argument that the protection of Labor Law § 240(1) is not available because the 15-inch-tall bucket was not a “physically significant” elevation differential. This Court has found that an inverted bucket is an inadequate safety device to raise a worker to the height required to perform the work and presents a risk within the ambit of the statute … . LaGrippo v 95th & Third LLC, 2025 NY Slip Op 02288, First Dept 4-22-25

Practice Point: Standing on an inverted bucket constitutes a physically significant height-differential for purposes of liability under Labor Law 240(1).

Practice Point: Plaintiff’s injury, not from a fall, but rather from his efforts to prevent his falling, can be covered under Labor Law 240(1).

 

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