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ACCORDING TO THE MEDICAL RECORDS, PLAINTIFF PROVIDED HER TREATING PHYSICIAN WITH A DESCRIPTION OF HER SLIP AND FALL WHICH DIFFERED FROM HER DESCRIPTION IN HER DEPOSITION TESTIMONY; PLAINTIFF’S MOTION TO QUASH THE SUBPOENA SERVED ON THE PHYSICIAN SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician, Dr. Monfett, in this slip and fall case should not have been granted. The medical records revealed plaintiff told the treating physician she tripped and fell breaking up a fight in a subway station. Plaintiff testified she fell because of a broken sidewalk in front of defendant’s building. The court noted that the statement in the medical record may be inadmissible hearsay without the physician’s testimony linking the statement to the plaintiff:

Dr. Monfett’s deposition is material and necessary to the defense because plaintiff’s account of her accident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendants’ potential liability, as well as plaintiff’s credibility … . Furthermore, the deposition is necessary because plaintiff’s statements in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her … . Defendants were not required to demonstrate “special circumstances” warranting Dr. Monfett’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment” … . Ogando v 40 X Owner LLC, 2024 NY Slip Op 05491, First Dept 11-7-24

Practice Point: Here defendants subpoenaed plaintiff’s treating physician because the statement attributed to plaintiff in her medical records differed from her description of the trip and fall in her deposition testimony. The defendants were not seeking to depose the physician as an expert concerning plaintiff’s diagnosis or treatment, but rather were focused on plaintiff’s apparently conflicting account of the accident, which would be inadmissible hearsay without the physician’s testimony.

 

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PLAINTIFF WAS NOT PROVIDED WITH A SECURED A-FRAME LADDER AND WAS NOT PROVIDED WITH ANYTHING TO SECURE THE PIPE HE WAS ATTEMPTING TO REMOVE WHEN IT FELL AND STRUCK THE LADDER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE “RECALCITRANT WORKER” AND “FAILURE TO FOLLOW SAFETY INSTRUCTIONS” ALLEGATIONS DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).​ ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on an unsecured A-frame ladder when a piece of pipe he was attempting remove fell and struck the ladder. The unsecured ladder was not an adequate safety device and no safety device was provided to secure the pipe. Allegations the plaintiff was a recalcitrant worker and was the proximate cause of the accident did not raise a question of fact:​

Defendants are liable for these injuries because plaintiff was not provided any safety devices except an unsecured ladder … .

Plaintiff was also not provided any safety devices to secure the pipe while it was being removed … . The use of a safety device to secure the pipe would not have impeded the work in progress … . Even if plaintiff’s coworkers were supposed to hold the pipe as he cut it, “people are not safety devices within the meaning of Labor Law § 240(1)” … .

… While defendants contend that plaintiff’s foreman gave him safety instructions concerning how to cut the pipe and where to place the ladder so that it would not be hit by a falling pipe, plaintiff was not recalcitrant because he was not provided with an adequate safety device to secure the pipe “in the first instance” … .

There is also no issue of fact as to whether plaintiff was the sole proximate cause of the accident because, even if the length of the pipe that plaintiff cut was too long, he was not provided with an adequate safety device to secure the pipe … . Furthermore, even if plaintiff disregarded an instruction not to place the ladder where the pipe could hit it, that was not the sole proximate cause of the accident as “an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Jara-Salazar v 250 Park, L.L.C., 2024 NY Slip Op 05407, First Dept 10-31-24

Practice Point: If an accident is the result of the failure to provide plaintiff with adequate safety equipment, the allegation plaintiff failed to follow safety instructions will not raise a question of fact.​

Practice Point: Here the failure to provide safety devices to secure a pipe which was being removed from the ceiling when it fell was a ground for defendants’ liability.

 

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PLAINTIFF FELL FROM A SCAFFOLD WITH NO GUARDRAILS; DEFENDANTS’ AFFIDAVIT ALLEGING GUARDRAILS WERE AVAILABLE WAS NOT BASED ON FIRST-HAND KNOWLEDGE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-fall case. The scaffold had no guardrails. The affidavit presented by the defendants stating that there were guardrails available did not raise a question of fact because the affiant was not at the site on the day of the fall:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action by submitting undisputed evidence that he fell off a scaffold, which lacked guardrails that would have prevented his fall, after the scaffold moved while he was standing atop it … .

Defendants failed to raise an issue of fact in opposition as to whether plaintiff was a recalcitrant worker. Although defendants presented an affidavit from the principal of nonparty contactor and plaintiff’s employer stating that there was a standing order for its employees to use only baker scaffolds with safety railings, that there were safety railings available at the worksite, and that safety railings would be provided upon request, this testimony does not suffice to raise an issue of fact. On the contrary, the principal expressly acknowledged that he was not present on the worksite on the date of plaintiff’s injury, and he offered no basis to find that he personally knew sufficient guardrails were present at the worksite for plaintiff to use on the scaffold … . Indeed, plaintiff testified that there were no guardrails available for use on the date of the incident. Ruiz v BOP 245 Park LLC, 2024 NY Slip Op 05419, First Dept 10-31-24

Practice Point: Here an affidavit which was not based on first-hand knowledge was deemed insufficient to raise a question of fact.

 

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PHOTOS SUBMITTED AS A NOTICE TO ADMIT DID NOT SHOW THE METAL OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL; ALTHOUGH THE PHOTOS ARE DEEMED TO SHOW THE PROJECT SITE ON THE DAY OF THE FALL, THERE WAS NO EVIDENCE THE PHOTOS DEPICTED THE CONDITION OF THE SITE AT THE TIME OF THE FALL OR IMMEDIATELY PRIOR TO THE FALL (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 alleged he tripped on metal debris and fell. Defendants submitted three photographs alleged to depict the project site on the day of the plaintiff’s fall as a notice to admit. The photos did not show any metal debris. Although plaintiff did not respond to the notice to admit, thereby deeming the allegations admitted, the photos did not establish the condition of the depicted area at the time of plaintiff’s trip and fall, or immediately prior to the fall:

According to plaintiff, his accident occurred as he was retrieving wooden planks for his coworker to install on the floor. Doing so required plaintiff to traverse over an uncovered beam pocket measuring three feet wide and three feet deep. His accident occurred when he tripped over metal debris on the floor and fell into the beam pocket. Plaintiff was wearing a harness with a yo-yo/at the time of his accident, but there was no place for him to tie off. * * *

… Defendants rely on a notice to admit that they served on plaintiff seeking his admissions that three photos annexed thereto … depicted the project site on the day of plaintiff’s accident. Plaintiff did not respond to the notice to admit, deeming the allegations admitted (CPLR 3123 [a]). However, these admissions do not establish that those photos fairly and accurately depict the location of plaintiff’s accident either at the time thereof or immediately prior thereto. Thus, the absence from those photos of the metal on which plaintiff claims to have tripped does not raise an issue of fact as to the manner in which plaintiff’s accident occurred. Guzman-Saquisili v Harlem Urban Dev. Corp., 2024 NY Slip Op 05420, First Dept 10-31-24

Practice Point: Photos which depict the condition of the area of plaintiff’s fall on the day of the fall, without more specificity about when the photos were taken, may not be deemed to depict the area at the time of the fall or immediately prior to the fall.

 

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THE OPTION TO PURCHASE THE CONDOMINIUM UNIT WHEN IT BECAME VACANT DID NOT VIOLATE THE RULE AGAINST PERPETUITIES; ALTHOUGH THE TENANT IN THE UNIT WAS NOT NAMED, REFERENCE TO THE TENANCY WAS SUFFICIENT TO SUPPLY A “LIFE IN BEING” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the contract giving plaintiff the option to purchase a condominium unit when the unit became vacant did not violate the rule against perpetuities (Estates, Powers and Trusts Law [EPTL] 9-1.1):

The court’s determination that there was no relevant life in being specifically named in the option, and therefore, the option was required to vest [*2]within 21 years, is too rigid an application of the rule. Rather, “[i]t is sufficient if a plain implication arises that a certain class or number of lives mentioned or referred to are selected for a limitation of the gift or trust” (61 Am Jur 2d, Perpetuities, Etc. § 16; see also Fitchie v Brown, 211 US 321, 333 [1908]).

Here, the … rider expressly stated:

“As Seller is unable to deliver vacant possession of Unit 5SR at the closing hereof, the Purchaser shall only purchase Unit 5SF . . . and the Purchaser shall have the option to purchase Unit 5SR at the time the Seller shall be able to deliver vacant possession thereof on all of the same terms and conditions as contained herein . . .”

Although the tenant is not expressly named in the option, the language of the option expressly makes the termination of his tenancy the relevant date upon which the option can be exercised … . Therefore, the court should not have determined that the reference to the tenant is too indefinite to serve as the relevant life in being. In addition, the interpretative canon set forth in EPTL 9-1.3(b), under which it is “presumed that the creator intended the estate to be valid,” applies. Protetch v Jocar Realty Co., Inc., 2024 NY Slip Op 05317, First Dept 10-29-24

Practice Point: This decision includes a rare discussion of the how the rule against perpetuities should be interpreted and applied.

 

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DEFENDANT’S DENIAL OF GUILT MADE WHEN HIS APPEAL WAS PENDING CANNOT BE USED AS THE BASIS FOR THE ASSESSMENT OF POINTS IN A SORA RISK-LEVEL PROCEEDING FOR “FAILURE TO ACCEPT RESPONSIBILITY” (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this SORA risk-assessment proceeding, determined defendant should not have been assessed 10 points for failure to accept responsibility because his denial of guilt was made when his appeal was pending:

… [T]he court should not have assessed 10 points under risk factor 12 for failure to accept responsibility. Defendant’s denials of guilt were made at the time his appeal from his underlying conviction was pending. “Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimination” … . People v Wallace, 2024 NY Slip Op 05189, First Dept 10-22-24

Practice Point: A denial of guilt made when defendant’s appeal was pending and there was a chance for a retrial cannot be used against him in a SORA risk-level assessment.

 

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THE NEARLY THREE-YEAR GAP BETWEEN PLAINTIFF’S KNEE SURGERY AND HIS SEEING THE SURGEON TO COMPLAIN OF KNEE PAIN DID NOT PRECLUDE THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact about whether the continuous treatment doctrine applies to render the action timely. Plaintiff had knee surgery and did not see the surgeon again for nearly three years when he experienced pain. He had not seen any other orthopedic surgeons in the interim:

Defendants fail to establish that plaintiff’s claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of “an ongoing relationship of trust and confidence between the patient and physician,” the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation … . The 34-month gap between the one-year postoperative follow-up visit after plaintiff’s right total knee replacement and her next complaint to defendant Dr. Steven B. Haas, M.D. about pain in his right knee does not prevent application of the doctrine as a matter of law, as plaintiff visited no orthopedic surgeon other than defendant Dr. Haas during that period, and she returned to Dr. Haas to address increased pain in her right knee, which even he determined would require revision surgery. Karanevich-Dono v Haas, 2024 NY Slip Op 05137, First Dept 10-17-24

Practice Point: Plaintiff had knee surgery and did not see the surgeon again for nearly three years to complain of knee pain. Plaintiff did not see any other orthopedic surgeon in the interim. There was a question of fact whether the continuous treatment doctrine applied to render the medial malpractice action timely.

 

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THE WARRANT ENTITLING PLAINTIFF TO MORE THAN 1100 SHARES OF DEFENDANT CORPORATION’S STOCK WAS APPENDED TO PLAINTIFF’S EMPLOYMENT CONTRACT WITH DEFENDANT; THE TWO CONTRACTS DID NOT MERGE AND ANY ALLEGED BREACH OF THE EMPLOYMENT CONTRACT BY PLAINTIFF DID NOT PRECLUDE THE ENFORCEMENT OF THE WARRANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirming Supreme Court, determined that the Warrant was a separate contract entitling plaintiff to 1,148 shares of defendant corporation, SPI. SPI argued the Employment Contract and the Warrant merged forming a single contract and plaintiff’s breach of the Employment Contract precluded recovery on the Warrant. The First Department held that the fact that the Employment Contract was appended to the Warrant was not enough to demonstrate the two contracts merged:

SPI argues that appending the Employment Agreement to the Warrant demonstrates integration of the two agreements, or at a minimum raises a factual issue, relying on Starr Indem. & Lia. Co. v Brightstar Corp. (388 F Supp 3d 304 [SD NY 2019]). The argument is unavailing because it is based on a misreading of Starr Indemnity. That decision held that, to incorporate a document into another agreement, “[n]o particular mode of reference is necessary for that purpose; any language which indicates the intent that the two shall make one instrument, or a physical annexing of the one to the other, in a manner or under circumstances [*6]showing clearly such intent, is sufficient” … . SPI overlooks the element of intent in its argument, basing its position solely on the fact that the Employment Agreement is attached to the Warrant. The mere fact that the Employment Agreement is appended to the Warrant is insufficient, standing alone, to demonstrate incorporation. Absent from the Warrant is any contractual language indicating a clear and unequivocal intent to incorporate and integrate the Employment Agreement. Instead, the Warrant simply states without qualification that plaintiff and SPI had entered into the annexed Employment Agreement, and fails to set forth any language providing for integration of the two agreements … . O’Connor v Society Pass Inc., 2024 NY Slip Op 05141, First Dept 10-17-24

Practice Point: The fact that one contract is appended to another, standing alone, is not enough to demonstrate the two contracts merged or were integrated.​

 

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PLAINTIFF’S SUIT AGAINST HIS EMPLOYER UNDER THE WHISTLEBLOWER LAW (LABOR LAW 740) SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE AMENDMENTS TO THE STATUTE APPLY RETROACTIVELY TO PLAINTIFF’S ALLEGATIONS; PLAINTIFF’S AGE-DISCRIMINATION CAUSES OF ACTION UNDER THE STATE AND NYC HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined amendments to the  Whistleblower Law (Labor Law 740) applied retroactively. Therefore plaintiff could sue based upon events which preceded the amendments. In addition, the First Department held plaintiff’s age-discrimination claims pursuant to the state and NYC Human Right Law should not have been dismissed:

Plaintiff states that he made numerous complaints to management at the hotel where he was employed. He complained that the windows lacked safety bars and were left wide open, that a fire exit was blocked by flammable materials, and that the hotel lacked permits for construction work. Plaintiff was later terminated. Because plaintiff failed to prove that an actual violation had occurred, his claim for retaliation would not have withstood summary judgment under the Whistleblower Law in effect at the time … . The Whistleblower Law has since been amended in this respect. It now covers activity “that the employee reasonably believes” violates law or poses a danger to the public (Labor Law § 740 [2] [a] …). …

We now find that the Whistleblower Law has retroactive application because the amendment at issue was remedial in nature … . * * *

… [P]laintiff submitted evidence that the hotel’s general manager, who participated in the decision to terminate plaintiff, told front desk managers about a plan to fill front desk positions “with young and attractive individuals,” naming as examples two front desk agents in their twenties. The hotel’s list of front desk employees hired between 2006 and 2012 shows that plaintiff was the oldest and that the two most recent hires were decades younger.

Plaintiff’s evidence that the hotel had twice attempted to terminate him for reasons found by arbitrators to be unsubstantiated, failed to interview him about the incident giving rise to his third termination, and prohibited testimony favorable to him from being offered at his third arbitration, as well as evidence that the arbitrator found plaintiff’s grievance to be a close case, could lead a reasonable jury to conclude that defendants’ proffered reason for the termination was “false, misleading, or incomplete” … . Therefore, the evidence supports an inference of age discrimination sufficient to reach a jury … . Spiegel v 226 Realty LLC, 2024 NY Slip Op 05076, First Dept 10-15-24

Practice Point: The amendments to the Whistleblower Law (Labor Law 740) were found by the First Department to apply retroactively to plaintiff’s allegations.​

Practice Point: Plaintiff made out a prima facie case of age-discrimination under the state and city Human Rights Law.

 

PLAINTIFF FELL FROM AN UNSECURED LADDER WHEN STRUCK BY FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (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 fell from an unsecured ladder when hit by small beams falling from the ceiling:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. Plaintiff met his prima facia burden by establishing that he was injured when he was hit by 20-to-30-pound small beams falling from the ceiling, causing him to lose balance while standing on an unsecured ladder … , and [defendant’s] evidence in opposition to this claim did not raise a triable issue of fact. Urquia v Deegan 135 Realty LLC, 2024 NY Slip Op 05080, First Dept 10-15-24

Practice Point: Losing one’s balance on an unsecured ladder when struck by a falling object makes out a prima facie case under Labor Law 240(1).

 

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