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THERE IS NO BRIGHT-LINE MINIMUM HEIGHT DIFFERENTIAL FOR AN ELEVATION HAZARD PURSUANT TO LABOR LAW 240(1); HERE A FALL OF 10.5 TO 20 INCHES FROM A STACK OF PALLETS WARRANTED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon a fall from a height of 10.5 to 20 inches. The court noted that, despite caselaw holding that a fall of 12 inches did not trigger the statute, there is no bright-line minimum height differential for an elevation hazard. Plaintiff was standing on a stack of pallets to operate a masonry saw when a plank broke and he fell:

The fact that plaintiff fell from a height of approximately 10 ½ to 20 inches is not a bar to summary judgment because the height differential is not, as a matter of law, de minimis. While this Court has previously held that a height differential of at most 12 inches above the floor was insufficient to find an elevation-related risk … , the jurisprudence of this Court has since evolved, recently reiterating that “[t]here is no bright-line minimum height differential that determines whether an elevation hazard exists” … . We have repeatedly found violations of Labor Law § 240(1) predicated upon falls from similar heights as the one at bar (see Ferguson v Durst Pyramid, LLC, 178 AD3d 634, 635 [1st Dept 2019] [fall from inverted bucket]; see also Megna, 306 AD2d at 164 [fall from temporary two-step wooden staircase]; Brown, 137 AD3d at 703-704 [fall through an opening in latticework rebar deck to plywood 12 to 18 inches below]; Arrasti, 60 AD3d at 583 [fall from ramp to the floor 18 inches below]; Haskins, 227 AD3d at 409 [fall into hole 2 to 2 ½ feet deep]). Furthermore, here, the senior superintendent of defendant Tishman Construction Corporation of New York admitted that the makeshift pallet structure was an “improper work platform” that was “against the most basic safety rules.” Palumbo v Citigroup Tech., Inc., 2025 NY Slip Op 04298, First Dept 7-24-25

Practice Point: There is no bright-line minimum height differential for an elevation hazard which will trigger liability under Labor Law 240(1). Here a fall of between 10.5 and 20 inches from a stack of pallets warranted summary judgment.

 

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THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in the presence of the 14-month-old child. By all accounts mother was “a good mother” and “very strong [and] hard-working.” Yet over the course of six months mother was subjected to 15 announced and unannounced home visits by an ACS caseworker who searched every room, the contents of the refrigerator, and inspected the child’s body:

As noted by the Sapphire W. Court [237 AD3d 41, Second Dept, 2-5-25] “in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with greater participation in abuse or neglect proceedings, while also expand[ing] the options available to Family Court judges when craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings . . . . Among other things, the legislation clarifie[d] the language of Family Court Act § 1017 by referring specifically to non-respondent parent, relative or suitable person as potential resources a court may consider after determining that a child must be removed from his or her home” … .

We agree with the sound reasoning in Matter of Sapphire W. and hold that Family Court Act §§ 1017 and 1027(d) do not permit supervision of a nonrespondent parent who has been caring for the child, in the absence of a court-ordered removal of the child. We further concur with the Second Department that, “[c]onsidering the intrusive and potentially traumatic impact of ACS involvement in a family’s life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored” … . Matter of R.A. (A.R.), 2025 NY Slip Op 04295, First Dept 7-24-25

Practice Point: The Administration for Children’s Services’ (ACS’) authority to supervise a nonrespondent mother who was abused by respondent father in the child’s presence is only triggered if and when the court orders the removal of the child from the home, not the case here. All agreed mother was “a good mother,” yet she was subjected to 15 announced and unannounced searches of her home and inspections of her child over the course of six months.

 

PLAINTIFF STEPPED IN A HOLE WHEN DELIVERING TILES TO THE WORK SITE; HE WAS PERFORMING WORK “NECESSARY AND INCIDENTAL” TO THE INSTALLATION OF THE TILES AND THEREFORE WAS PROTECTED BY LABOR LAW 240(1); A SUBCONTRACTOR WILL NOT BE LIABLE UNDER THE LABOR LAW AS A STATUTORY AGENT OF THE OWNER OR GENERAL CONTRACTOR UNLESS THE SUBCONTRACTOR HAS AUTHORITY OVER THE AREA WHERE PLAINTIFF WAS INJURED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was delivering tiles to the construction site when he stepped into a hole near the loading ramp. Although plaintiff was not himself engaged in work covered by Labor Law 240(1), he was performing work “necessary and incidental” to the installation of the tiles. The court noted that the action against a subcontractor was properly dismissed because the subcontractor did not exercise any authority over the area where plaintiff was injured and therefore could not be considered a “statutory agent” under the Labor Law:
Labor Law § 240(1) protects persons engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The task that a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under this statute … . 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 … . Because plaintiff’s work in delivering and unloading tiles to be used in the activity covered by Labor Law § 240(1) was “necessary and incidental” to the protected activity, he was within the class of workers protected by those statues, notwithstanding that he was not assigned to participate in the installation of the tiles … .
… Labor Law §§ 200, 240(1), and 241(6) only apply to owners, general contractors, and their statutory agents … . “To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury. If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory” … . Here, [the subcontractor’s] work as the electrical contractor was limited to providing electrical installation and temporary lighting, and did not encompass either tile work or maintaining the temporary ramp or surrounding areas. Rodriguez v Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 04221, First Dept 7-17-25
Practice Point: Delivering materials to a work site is necessary and incidental to the construction work and is therefore a covered activity under Labor Law 240(1).
Practice Point:  A subcontractor will not be liable to an injured worker as a statutory agent of the owner or general contractor unless the subcontractor exercises authority over the area where the injury occurred (not the case here).
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THE NEW YORK CITY LOCAL LAWS REFORMING THE NYC FIGHTING HOMELESSNES AND EVICTION PREVENTION SUPPLEMENT ARE NOT PREEMPTED BY THE NEW YORK STATE SOCIAL SERVICES LAW (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined that the local laws passed by the City Council modifying the New York City Fighting Homelessness and Eviction Prevention Supplement (FHEPS) were not preempted by the New York State Social Services Law. The opinion is comprehensive and too detailed to fairly summarize here:

[The] FHEPS reform laws were prompted by three conditions faced by the City: the rising number of evictions of residential tenants, a dramatic increase in the rate of homelessness, and an overburdened shelter system.  These laws were designed to broaden eligibility for City-funded rental assistance, and promote quantitatively and qualitatively greater assistance. Thus, the FHEPS reform laws increased the income eligibility threshold, eliminated a 90-day shelter residency requirement, eliminated recipient work requirements, prohibited the New York City Department of Social Services (City DSS) from deducting a utility allowance from the maximum rental allowance for a FHEPS voucher, and expanded the list of individuals eligible for rental assistance (see Local Law Nos. 99-102). * * *

Several individuals who hoped to avail themselves of the benefits of the FHEPS reform laws commenced this CPLR article 78 proceeding, challenging the Mayor’s refusal to implement those laws. The individuals initiated the proceeding as a putative class action, and bring the case on behalf of themselves and others similarly situated. The City Council was granted leave to intervene in the proceeding, and sought an order directing the Mayor to implement the FHEPS reform laws or, alternatively, a declaration that those laws are valid. With respect to the principal relief sought, the City Council makes plain that it “seeks only that the Mayor be directed to take action to implement [the new local laws]. How the administration implements the [FHEPS] Reform Laws is within the administration’s discretion.”

The Mayor opposed the article 78 petition on the ground that the FHEPS reform laws are preempted by the State’s Social Services Law. Matter of Vincent v Adams, 2025 NY Slip Op 04146, First Dept 5-27-25

Practice Point: Consult this opinion for an analysis of the preemption doctrine in the context of NYC Local Laws and the NYS Social Services Law.

 

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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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