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A CONSIDERABLE NUMBER OF DAYS DEVOTED TO MOTION PRACTICE SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE; DEFENDANT’S 30.30 SPEEDY-TRIAL MOTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial (CPL 30.30) motion should have been denied because considerable time-periods should not have been charged to the People:

The court should have denied defendant’s CPL 30.30 motion to dismiss the indictment. The court should not have charged the People for the 98-day period during which codefendant delayed serving a copy of his omnibus motion on the People. This time is excludable as time attributed to “pretrial motions,” including “the period during which such matters are under consideration by the court” (CPL 30.30[4][a] …).

The court likewise should have excluded the 42-day period between the date of its decision on codefendant’s omnibus motion and the date on which the matter was adjourned for the People to file their certificate of compliance (COC) … . The People were entitled to “reasonable time to prepare for hearings and trial after the court’s rulings on [the co]defendant’s omnibus motion” … . People v Page, 2026 NY Slip Op 04823, First Dept 7-30-26

Practice Point: Here days related to defense motion practice and preparation for hearings precipitated by rulings on defense motions should not have been charged to the People in a “speedy trial” analysis.

 

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A STAIRWAY MAY CONSTITUTE A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1) AND A STAIRWAY NEED NOT BE DEFECTIVE TO TRIGGER LABOR LAW 240(1) LIABILITY; HERE IT WAS ALLEGED THE STAIRWAY WAS INADEQUATELY ILLUMINATED AND WAS OBSTRUCTED BY A CABLE WHICH CAUSED PLAINTIFF TO TRIP AND FALL (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s (RBS’s) motion for summary judgment, over a two justice dissent, determined that a stairway need not be defective to fall under the coverage of Labor Law 240(1). Here plaintiff alleged the stairway was inadequately illuminated and was obstructed with a cable which caused plaintiff to trip and fall. The stairway can constitute a safety device within the meaning of Labor Law 240(1) and the majority concluded the stairway itself need not be defective to trigger Labor Law 240(1) liability:

Questions of fact exist as to whether the staircase constituted a Labor Law § 240(1) safety device … .

… [In] “the First Department, falls from permanent appurtenances which function as the only means of access are . . . entitled to Labor Law § 240(1) protection,” including “stairways . . . utilized . . . in the performance of the plaintiff’s work.” Consistent with this, RBS cites no controlling caselaw holding that Labor Law § 240(1) does not apply to injuries incurred on stairways that are not structurally defective….  … T]he dissent makes an argument … that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective. The dissent cites three cases to support its claim that Labor Law § 240(1) claims involving stairways have been sustained only when the stairways involved were structurally defective. However, none of these cases sustained a Labor Law § 240(1) claim; rather, they affirmed denials of summary judgment, and in any event, did not turn on the structural soundness of the staircases at issue … . It is improper for us to decide an issue that appellant did not raise and that respondent was not given an opportunity to address … . Mazzurco v Broadway 52nd L.P., 2026 NY Slip Op 04822, First Dept 7-30-26

Practice Point: In the First Department, a stairway may constitute a safety device within the meaning of Labor Law 240(1) and the stairway itself need not be defective to trigger Labor Law 230(1) liability.

Practice Point: An appeal should not be decided on a ground not raised by the appellant.

 

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WHEN DEFENDANT TOLD THE JUDGE “MY LAWYER IS INEFFECTIVELY COUNSELING ME” THE JUDGE MADE NO INQUIRY INTO THE BASIS FOR THE STATEMENT AND SHUT DOWN ANY FURTHER STATEMENTS BY THE DEFENDANT; THE MAJORITY CONCLUDED THAT WAS REVERSIBLE ERROR; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing the conviction and ordering a new trial, over a dissent, determined the judge’s failure to conduct any inquiry when defendant requested new counsel was reversible error:

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel … . The defendant’s request “may not be used merely to delay the orderly administration of justice” … . It must be supported by “specific factual allegations of serious complaints about counsel” … . Once the court determines that defendant’s request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel … .

However, before the court can determine whether the defendant’s allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations … . Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” … . * * *

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I’m not getting a fair trial. I’m not even prepared for a trial. My lawyer, my lawyer is ineffectively counseling me . . . . [a]nd also representing me.” The court responded that “You made your record” and “I’m not relieving your counsel. Don’t interrupt me.” Defendant tried to continue his request and stated, “I asked for a lab report. He gave me a field test.” The courtinterjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it’s going to be a problem, okay. So just get yourself under control.” The court’s admonition effectively foreclosed any further discussion. People v Cooper, 2026 NY Slip Op 04561, First Dept 7-23-26

Practice Point: When a defendant tells the judge he is not being effectively represented by counsel, the judge should make at least a minimal inquiry. Here the failure to make any inquiry into the basis of defendant’s statement was deemed reversible error.

 

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THE PARTIES IN THIS DIVORCE PROCEEDING ENTERED A LITIGATION FUNDING AGREEMENT IN WHICH DEFENDANT ADVANCED FUNDS TO PLAINTIFF IN RETURN FOR THE ASSIGNMENT OF PROCEEDS FROM THE DIVORCE CLAIM; DESPITE THE INCLUSION OF THE TERM “THIS IS NOT A LOAN” IN THE AGREEMENT, THE FIRST DEPARTMENT HELD THE AGREEMENT WAS IN FACT AN INVALID LOAN AT A USURIOUS 18.96% ANNUAL INTEREST RATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, reversing (modifying) Supreme Court, determined the parties’ divorce-litigation funding agreement was a usurious loan, not an investment, and was therefore void and unenforceable:

The parties entered into a Purchase and Sale Agreement, dated May 23, 2018 (the PSA), wherein defendant agreed to advance approximately$200,000 to plaintiff to fund the legal costs of plaintiff’s pending divorce action. In return, plaintiff agreed to assign to defendant his right to receive any proceeds from the divorce claim up to the amount owed to defendant under the PSA. The “Proceeds” consisted of “the total recovery from the Claim” and the “Claim” was defined as plaintiff’s right, title, and interest in and to any amount granted to plaintiff in connection with his pending divorce action, any appeal or settlement with respect thereto, and any related action. * * *

The PSA clarified that “THIS IS NOT A LOAN” and was expressly contingent on plaintiff’s “successful” recovery on the Claim. It proclaimed that “[i]f there is no recovery on the Claim, nothing will be owed to [defendant].” Yet, several provisions of the PSA together with the Sweetheart Guaranty … , entitled defendant to recoup the money it advanced plus interest even if “there is no recovery on the Claim,” such as in the event of plaintiff’s death or reconciliation with his wife. * * *

Considering the totality of the circumstances … , we find that the parties’ PSA was in fact a loan. The only remaining question is whether the loan was usurious. A loan is usurious if the interest exceeds the maximum legal rate of 16% (see General Obligations Law § 5-501[1], [2]; Banking Law § 14-a[1]). It is undisputed that under the PSA, interest accrued at 18.96% annually, which exceeds the legal limit. Denemark v New Ch. Capital, Inc., 2026 NY Slip Op 04553, First Dept 7-23-26

Practice Point: Consult this opinion for insight into when an agreement constitutes a “loan” subject to the usury law rather than an “investment.”

 

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DEFENDANT’S MURDER CONVICTION HINGED ON THE CREDIBILITY OF A POLICE OFFICER’S CLAIM DEFENDANT CONFESSED TO INTENTIONAL MURDER; ALL OTHER STATEMENTS ATTRIBUTED TO DEFENDANT WERE CONSISTENT WITH AN ACCIDENTAL SHOOTING; WITHHOLDING TWO FEDERAL COMPLAINTS AGAINST THE OFFICER AND THE OFFICER’S “CIVILIAN COMPLAINT REVIEW BOARD” (CCRB) RECORDS FROM THE DEFENSE WAS A REVERSIBLE BRADY VIOLATION (FIRST DEPT).

The First Department, affirming the vacation of defendant’s conviction stemming from the People’s Brady violation, in a detailed opinion by Justice Kapnick, determined the murder conviction hinged on the credibility of a police officer’s (Rodriguez’) claim defendant confessed to intentional murder. All of the other statements attributed to defendant were consistent with an accidental shooting. The opinion is far too complex to fairly summarize here and is well worth studying:

Defendant argued that the People possessed but did not disclose (i) two federal complaints brought by pro se plaintiff Dale Robertson against Detective Rodriguez, (ii) a complaint brought by plaintiff Enger Miguel Javier against Detective Rodriguez in Bronx Supreme Court, and (iii) a three-page CCRB [Civilian Complaint Review Board] Officer History. Defendant argued that the People’s failure to disclose these materials undermined the fairness of his trial and may have impacted the verdict.

The verified complaint for Javier v City of New York, filed approximately one year [the instant shooting], alleged that Detective Rodriguez and his partner interrogated the plaintiff, Javier, over two days without Miranda warnings and deprived him of access to a lawyer … . It further alleged that the detectives forced a witness to falsely accuse Javier of the crime, even though Javier repeatedly told the detectives that he was innocent and identified the actual perpetrator. Ultimately, the Bronx DA dismissed the charges against Javier.

In Robertson, the plaintiff alleged that Detective Rodriguez coerced him into confessing that he had accidentally murdered the victim while he was being transported to Central Booking …. Robertson claimed that Detective Rodriguez and another officer transported him in the back of an unmarked police vehicle with the front seat pushed all the way back, crushing Robertson’s legs. Detective Rodriguez, who was seated next to him, allegedly pressed him against the window to coerce the confession.

The People conceded that they possessed but did not disclose a CCRB Officer History containing summary information regarding 40 allegations made against Detective Rodriguez, including the dates, categories of allegations, and disposition of each incident. The 40 allegations of misconduct reflect 16 discrete CCRB incidents where Detective Rodriguez allegedly used physical force, caused property damage and threatened arrest. People v White, 2026 NY Slip Op 04475, First Dept 7-16-26

Practice Point: Consult this opinion for an in-depth analysis of when civilian complaints against a police officer must be disclosed by the People as Brady material.

 

VERTICALLY-STACKED SHEETS OF METAL ON A DOLLY FELL ON PLAINTIFF WHEN HE MOVED IT; THE HEIGHT DIFFERENTIAL WAS NOT DE MINIMUS AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; THE FACT THAT THE DOLLY BELONGED TO ANOTHER CONTRACTOR WAS NOT DISPOSTIVE, PLAINTIFF WAS DIRECTED TO MOVE THE DOLLY AS PART OF HIS EMPLOYMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action. Plaintiff moved a dolly belonging to another contractor. The dolly tipped over and the vertically-stacked sheets of metal that were on the dolly struck him. The elevation differential between the dolly and floor was not de minimus and, although the dolly belonged to another contractor, plaintiff was directed to move it:

Based on plaintiff’s testimony as well as the testimony of OTL Enterprises’ principal that an unsecured load of material on a dolly was unsafe because the material could fall, plaintiff established that the metal sheets required securing … , the material that fell here was elevated on a dolly such that the elevation differential was not de minimus but rather was sufficient for the load of metal sheets to generate a significant amount of force and was a proximate cause of plaintiff’s injuries.

Plaintiff’s conduct of moving another subcontractor’s loaded dolly that was in the way of his work after an unnamed site supervisor allegedly directed him to do so was in the scope of plaintiff’s employment and was not the act of a volunteer falling outside the ambit of Labor Law § 240(1) … . Plaintiff’s conduct in moving the dolly was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Aponte v 298 E. Vil. Owner LLC, 2026 NY Slip Op 04138, First Dept 6-30-26

Practice Point: The difference in height between the platform of a dolly and the floor was not de minimus. Plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action after being struck by metal plates which fell from the dolly.

 

A RARE SITUATION WHERE SUSPENSION OF THE NONCUSTODIAL PARENT’S CHILD SUPPORT OBLIGATION WAS WARRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over an extensive dissent, affirmed Supreme Court’s denial of mother’s motion for pendente lite child support in the amount of $25,000/month and $10,000/month travel allowance. It was determined mother deliberately and actively alienated the child from the father:

Based on clear and convincing evidence presented at the 35-day custody trial, the court determined that the mother had deliberately and actively alienated the child from the father in “one of the most clear-cut and disturbing examples of parental alienation that this court has observed through thousands of custody cases over many years.” Accordingly, the court reasonably determined that this is one of the unfortunate and rare situations where suspension of the noncustodial parent’s child support obligation was warranted. Specifically, the court decided the pendente lite motion by directing the father to pay 90% of the child’s unreimbursed medical and mental health expenses and otherwise suspended the father’s child support obligation until the child’s visitation with the father was “meaningfully resumed” or “there is otherwise good cause to resume the support” … . * * *

As the motion court found, the child’s reasonable and appropriate needs are being met … . It is undisputed that the mother and child continue to reside in a 1,500 square foot luxury apartment with views of Central Park and that the father continues to pay all of the child’s expenses for private school, extracurricular activities and tutoring, in addition to 90% of her unreimbursed medical and mental health expenses. Rosenfeld v Rosenfeld, 2026 NY Slip Op 04048, First Dept 6-25-26

 

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PLAINTIFF’S STATEMENT THE LADDER MOVED SIDE TO SIDE CAUSING HIM TO FALL AND PLAINTIFF’S STATEMENT HE LOST HIS BALANCE ARE NOT INCONSISTENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Suprem[e Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testified the ladder moved side to side. A medica report indicated plaintiff said he lost his balance. The two statements were not inconsistent:

Plaintiff, who fell from an eight-foot A-frame ladder while installing sheetrock, established his prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action through his testimony that the ladder moved from side to side and caused him to fall … .

… [Even] if plaintiff’s hearsay statement contained in his post-accident medical report and post-accident investigation report that he lost his balance may be considered, it is not inconsistent with his testimony that the ladder moved and caused him to fall … . Gomez v Brookfield Props. One WFC Co., LLC, 2026 NY Slip Op 03921, First Dept 6-23-26

Practice Point: The statement that a ladder-fall resulted from movement of the ladder from side to sided and the statement that the ladder-fall resulted from plaintiff’s losing his balance are not inconsistent and do not create a question of fact.

 

PLAINTIFF SUED THE DEVELOPER OF PROPERTY ADJACENT TO PLAINTIFF’S BUILDING ALLEGING EXCAVATION WORK CAUSED PLAINTIFF’S BUILDING TO SETTLE AND LEAN; THE CITY ISSUED A STOP-WORK ORDER STEMMING FROM PLAINTIFF’S COMPLAINT; DEFENDANT-DEVELOPER THEN COUNTERCLAIMED ALLEGING PLAINTIFF WAS NEGLIGENT IN NOT MAINTAINING PLAINTIFF’S BUILDING SUCH THAT THE EXCAVATION WORK WOULD NOT DAMAGE IT, RESULTING IN THE STOP-WORK ORDER AND CAUSING THE DEVELOPER PURELY ECONOMIC LOSS OF AT LEAST $16 MILLION; SUPREME COURT LET THE COUNTERCLAIM STAND BUT THE FIRST DEPARTMENT DISMISSED IT; PLAINTIFF DID NOT OWE A DUTY TO THE DEVELOPER AND THE DEVELOPER WAS NOT ENTITLED TO PURELY ECONOMIC DAMAGES (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the defendant-developer’s counterclaim alleging plaintiff was negligent should have been dismissed. Plaintiff sued the developer alleging excavation and construction on the developer’s property, which is adjacent to plaintiff’s building, caused plaintiff’s building to settle and lean. Defendant-developer counterclaimed alleging plaintiff was negligent in not maintaining plaintiff’s building such that the excavation would would not damage it. The counterclaim alleged economic harm ($16 million) stemming from a stop-work order triggered by the plaintiff’s complaint:

The negligence counterclaim asserts that plaintiff “had a duty to construct and maintain the 1992 Building in compliance with the [Building] Code” and “a duty to maintain the 1992 Building in a reasonable and safe condition.” It contends that, as evidenced by three structural engineering reports, the building was “not constructed in compliance with the Code,” “remains in violation of the Code” and “was constructed and remains in an unsafe condition.” … The counterclaim further asserts that, on December 13, 2023, as a result of these conditions, “the DOB issued a partial Stop Work Order for the Project Site, forcing [the developer] to stop construction on its own property because of structural instability of the 1992 Building that was caused by the 1992 Building’s non-compliance with the Code and [plaintiff’s] failure to maintain the 1992 Building in a reasonable condition.” According to the developer, it was “harmed by the delay in construction . . . due to this stoppage” in an amount not less than $16 million. The developer does not allege that plaintiff’s negligent design, construction, and maintenance of its building caused any bodily injury or property damage.

This appeal raises two novel issues: 1) whether Supreme Court correctly held that plaintiff owes the developer a common-law duty as an adjacent landowner to protect the developer’s excavation/foundation work from construction delays arising out of the stop work order and, 2) assuming the existence of a duty based on plaintiff’s status as an adjacent landowner, whether the court correctly held that the developer could recover purely economic damages.

We now answer both questions in the negative and reverse. 1992 Third Realty LLC v Third Ave NY Realty LLC, 2026 NY Slip Op 03871, First Dept 6-18-26

Practice Point: The owner of a building which is damaged by excavation work on an adjacent building by a developer, does not owe a duty to the developer to maintain his building such that the excavation work would not damage it.

 

IF THE FACTS FIT THE STATUTORY CRITERIA OF THE “HEIRS ACT” (RPAPL 993(2)), THE ACT MUST BE APPLIED TO A PARTITION ACTION RE: PROPERTY HELD BY TENANTS-IN-COMMON (FIRST DEPT).

The First Department, remitting the matter, determined Supreme Court should have applied the Heirs Act to this partition action re: property held as tenants-in-common. The First Department noted that if the facts fit the requirements of RPAPL 993(2) (the Heirs Act), the Act must be applied:

The Heirs Act does not apply in all cases where real property is owned by tenants-in-common. Rather, “heirs property” is defined as real property that is held in tenancy in common and satisfies all of the following requirements: there is no agreement in a record binding all of the co-tenants which governs the partition of the property (RPAPL 993[2][e][i]); any of the co-tenants acquired title from a relative (RPAPL 993[2][e][i]); the property is used for residential or agricultural purposes (RPAPL 993[2][e][iii]); and any of the following applies: (a) 20% or more of the interests are held by co-tenants who are relatives; (b) 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; (c) 20% or more of the co-tenants are relatives of each other; or (d) any co-tenant who acquired title from a relative resides in the property (RPAPL 993[2][e][iv][A]-[D]).

Construing unambiguous language to give effect to its plain meaning, as we must …, we find that the Heirs Act is applicable in this action because all of the conditions noted in RPAPL 993(2)(e) were satisfied. There was no agreement in the record governing the partition of the property; both parties acquired their interest from their mother; the property was used as a residence; and all of the conditions set forth in RPAPL 9939(2)(e)(iv) were present. Thus, the statute unambiguously applies to the parties here and expressly takes precedence over the traditional partition proceedings under RPAPL 901(1) (RPAPL 993[3][c]). Accordingly, the matter should be remitted to Supreme Court to comply with the requirements of the Heirs Act. Williams v Williams, 2026 NY Slip Op 03902, First Dept 6-18-26

Practice Point: Consult this decision for the circumstances under which the “Heirs Act” must be applied to a partition action re: property held by tenants-in-common.​

 

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