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THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE DETERMINING DEFENDANT’S SORA RISK-LEVEL; MATTER REMITTED (SECOND DEPT). ​

The First Department, remitting the matter, determined the judge did not make the required findings of fact and conclusions of law when designating the defendant’s risk level under SORA:

In designating a sex offender’s risk level under SORA, “[t]he court shall render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n[3]). Here, the court’s statement at the conclusion of the hearing “did not adequately set forth the findings of fact and conclusions of law on which it based its decision” to assess the points at issue on appeal and deny defendant’s motion for a downward departure … . Instead, the court simply stated: “The People have met their burden of proof of clear and convincing evidence, that 135 points were properly assessed, which corresponds to a Level 3 sex offender designation. The motion for downward departure is denied.” The court’s written order repeated those statements. Therefore, we remand the matter to Supreme Court “to specify the required findings and conclusions, based on the evidence already introduced” … . People v Tolliver, 2025 NY Slip Op 00489, First Dept 1-30-25

Practice Point: A judge’s designation of a defendant’s SORA risk level must be supported by findings of fact and conclusions of law.

 

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EVEN THOUGH THE COOPERATIVE LANDLORD WON IN THE UNDERLYING LITIGATION AGAINST A SHAREHOLDER TENANT, THE LEASE PROVISION REQUIRING THE TENANT TO PAY ATTORNEY’S FEES REGARDLESS OF DEFAULT OR MERIT WAS UNENFORCEABLE AS UNCONSCIONABLE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the lease provision which provides for attorney’s fees regardless of default or merit unenforceable as unconscionable:

Because the lease provides for attorneys’ fees regardless of default or merit, in a dispute between a residential co-op [The Dakota] and a shareholder tenant [Fletcher] , we find this provision to be unenforceable as unconscionable … . The lease is not “silent as to whether such right is contingent upon the merits of plaintiff’s action” … , but explicitly provides for attorneys’ fees whenever the tenant sues The Dakota. This interpretation is not changed by the description of the fees as “reasonable” … . “Bearing in mind that agreements providing for payment of attorneys’ fees should be construed strictly” … , we will not rewrite the parties’ agreement simply because The Dakota prevailed in the underlying litigation … .”To enforce such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default” … . Kasowitz, Benson, Torres & Friedman, LLP v JPMorgan Chase Bank, N.A., 2025 NY Slip Op 00396, First Dept 1-28-25

Practice Point: A lease provision which requires a tenant to pay attorney’s fees regardless of default or merit is unconscionable and will not be enforced even where the landlord won the underlying litigation.

 

PLAINTIFF’S WORK, DELIVERING TILES TO THE WORK SITE, WAS COVERED BY LABOR LAW 240(1) AS “NECESSARY AND INCIDENTAL” TO THE PROTECTED CONSTRUCTION-ACTIVITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s work, delivering tiles to the construction site, was covered by Labor Law 240(1). Therefore plaintiff was entitled to summary judgment for injury suffered after stepping in the two-foot-deep hole near the loading ramp:

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 … . Rodriguez v Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 00411, First Dept 1-28-25

Practice Point: Although plaintiff was not involved in installation of the tiles, delivery of the tiles to the work site was a protected activity pursuant to Labor Law 240(1) as “necessary and incidental” to the installation.

 

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IT WAS SUFFICIENTLY ALLEGED THE RELEASE WAS INDUCED BY FRAUD; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint should not have been dismissed on the basis of the release because it was sufficiently alleged the release was induced by fraud:

Plaintiff’s complaint sufficiently alleges that the general release that was the basis for dismissal of the complaint was fraudulently induced based on defendant’s misrepresentations upon which plaintiff justifiably relied … . For example, the complaint alleges, among other things, that defendant induced plaintiff’s signature on the release by stating that if plaintiff did not sign, defendant would withdraw a New York Gaming Commission complaint that plaintiff had urged defendant to file, when, in fact, there was no complaint to withdraw because defendant had falsely represented he had filed the complaint.

Upon a “detailed analysis of whether plaintiff had sufficiently alleged the existence of overreaching or unfair circumstances such that enforcement of the general release[] would be inequitable” … , we concluded that dismissal of the complaint based on the release was not warranted. Jones v Jacobs, 2025 NY Slip Op 00377, First Dept 1-23-25

Practice Point: Here the complaint sufficiently alleged the release was induced by fraud. The complaint should not have been dismissed based on the release.​

 

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THE WARRANTLESS SEARCH PROBATION CONDITION WAS NOT REASONABLY RELATED TO THE UNDERLYING OFFENSES; THE APPEAL WAIVER WAS INVALID; EVEN IF THE WAIVER WERE VALID THE IMPROPER PROBATION CONDITION COULD BE CONSIDERED ON APPEAL (FIRST DEPT).

The First Department determined defendant’s waiver of appeal was invalid and the probation condition allowing warrantless searches of defendant’s home, person and vehicle was not reasonable related to the underlying offenses. The court noted that defendant could appeal the probation condition even if the appeal waiver were valid:

We find defendant’s appeal waiver invalid and unenforceable because the court did not adequately explain the nature of the appellate rights defendant was waiving, that the right to appeal was separate and distinct from the rights automatically forfeited upon a guilty plea or the limited claims that survive an appeal waiver … . The written waiver of appeal defendant signed “[was] not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … .

Although defendant’s waiver of the right to appeal was invalid, defendant’s sentence was not excessive. However, the special probation condition permitting warrantless searches of defendant’s home, person and vehicle was not reasonably related to defendant’s rehabilitation since the crime of which defendant was convicted did not involve weapons or drugs … . Contrary to the People’s contention, a defendant’s challenge to the condition of probation requiring consent to searches of their person, vehicle and place of abode by a probation officer for drugs, drug paraphernalia, weapons and contraband would have survived the appeal waiver had it not been invalid … . People v Amparo, 2025 NY Slip Op 00389, First Dept 1-23-25

Practice Point: A written appeal waiver does not cure deficiencies in the judge’s explanation of the forfeited rights.

Practice Point: A condition of probation which does not reasonably relate to the underlying offenses will be struck on appeal.

Practice Point: An improper probation condition can be appealed even if the error has not been preserved by objection.

 

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PLAINTIFF WAS CROUCHING DOWN MARKING THE FLOOR WITH DUCT TAPE WHEN A LADDER FELL OVER AND STRUCK HIM; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defense motion for judgment for summary judgment in this Labor Law 240(1) action should not have been granted and plaintiff’s cross-motion for summary judgment should have been granted. Plaintiff was crouching down marking off areas of the floor with duct tape when an ladder fell over and struck him, causing him to lose consciousness:

The elevation differential involved here cannot be described as de minimis … . The evidence also established that the ladder was not adequately secured for the purposes of the undertaking … .

… [P]laintiff established prima facie entitlement to summary judgment through his deposition testimony that he was struck by a ladder that was not properly secured. … [I]t was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker. Nor could a worker knocking over the ladder be considered an intervening superseding cause in this case … . Silva v 770 Broadway Owner LLC, 2025 NY Slip Op 00299, First Dept 1-21-25

Practice Point: Here plaintiff was marking the floor with duct tape when a ladder which had been leaning against a wall fell over and struck him. It was foreseeable that an unsecured ladder could fall over. If a worker knocked it over, that would be foreseeable as well and would not be a superseding cause.

 

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THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

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THE CONTRACTOR THAT HIRED THE SUBCONTRACTOR FOR WHICH THE INJURED PLAINTIFF WORKED WAS THE CONDOMINIUM DEFENDANTS’ STATUTORY AGENT AND THEREFORE CAN BE HELD LIABLE IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant Chelsea, the contractor that hired the subcontractor, Prince, for which the injured plaintiff worked, was the statutory agent of the condominium defendants in this Labor Law 240(1) case. Therefore the action against Chelsea should not have been dismissed:

Supreme Court improperly dismissed Chelsea from this action on the ground that it is not the condo defendants’ statutory agent for purposes of Labor Law § 240(1) liability. Chelsea was the only contractor that the condo defendants retained to perform their window-washing project, and Chelsea cannot escape liability under Labor Law § 240(1) because it delegated the work by subcontracting it to Prince, plaintiff’s employer … . Chelsea’s authority to supervise and control the work is also demonstrated by its subcontracting the work to Prince, and whether Chelsea actually supervised plaintiff’s work is irrelevant … . Barreto v Board of Mgrs. of 545 W. 110th St. Condominium, 2025 NY Slip Op 00185, First Dept 1-14-25

Practice Point: Liability under Labor Law 240(1) extends to the statutory agent of the property owner, here the contractor that hired the subcontractor for which the injured plaintiff worked.

 

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THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner:

Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic evidence showing the area where the sidewalk connects to the tree well and marked by plaintiff at her deposition to show where she fell. This evidence, taken together, establishes that plaintiff fell when she stepped into and out of the perimeter of the tree well, not when she stepped on an uneven sidewalk slab or other sidewalk defect … . The perimeter of the tree well is not part of the sidewalk whose maintenance is the responsibility of the abutting property owner under Administrative Code of City of NY § 7-210 … . Rather, the perimeter of the tree well is part of the tree well itself, which the City, not the property owner responsible for the sidewalk, has the obligation to maintain in a safe condition … .

Defendant also submitted an affidavit and deposition testimony from one of its owners, stating that the tree wells near the property were installed by the City and that neither defendant nor any building tenant constructed the tree well, maintained it, repaired it, or put it to special use. This evidence was sufficient to show that defendant did not affirmatively create the dangerous condition, negligently make repairs to the area, or cause the dangerous condition to occur through a special use of the area. Thus, there was no basis to impose liability on the defendant … . Cabral v Triangle, LLC, 2025 NY Slip Op 00187, First Dept 1-14-25

Practice Point: In NYC tree wells, as opposed to the surrounding sidewalks, are the responsibility of the city, not the abutting property owner. Here plaintiff tripped and fell stepping into a tree well. Defendant abutting property owner was off-the-hook.

 

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AT SENTENCING THE PROSECUTOR REFERENCED EXCULPATORY STATEMENTS ATTRIBUTED TO DEFENDANT IN THE PRESENTENCE REPORT BUT, WHEN GIVEN THE OPPORTUNITY, NEITHER DEFENDANT NOR DEFENSE COUNSEL ADDRESSED THE ISSUE; NOTWITHSTANDING THE SILENCE OF THE DEFENSE THE JUDGE SHOULD HAVE INQUIRED INTO WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY; THERE WAS NO NEED TO PRESERVE THE ERROR FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Singh, determined the prosecutor’s mention of defendant’s (Dupree’s) exculpatory statements in the presentence report (PSR) required the judge to conduct an inquiry to ensure the guilty plea was knowing and voluntary, despite the defendant’s and defense counsel’s failure to address the statements at sentencing. Defendant and defense counsel were asked by the judge whether they wished to address the court and both said “no.” The issue need not be preserved and was properly raised on appeal:

Before sentencing, Dupree was interviewed by the Department of Probation. He made the following statement: “I admitted to shooting someone in the leg and back and the bullet went through his chest. I was fighting with him (stranger) and was defending myself. I was drinking at the club and someone slipped something in my drink and I was leaving the club to get home. He saw me staggering and wanted to rob me.” This statement was included in the presentence report (PSR).

At sentencing, Supreme Court asked whether the parties had any factual difficulties with the PSR. The prosecution replied, “I do have some factual difficulty relating to the defendant’s statement which I do not believe there was a valid self-defense claim. In fact, it is not a valid self-defense claim. . . . So I do take issue with that part of his statement as well as his claimed intoxication.” The court then asked, “and anything for the defense?” to which defense counsel replied, “no.” The court later asked whether the defense would like to be heard as to the promised sentence and, finally, asked Dupree himself if there was anything he would like to add. Neither Dupree nor his attorney addressed the statement in the PSR or the prosecution’s comment made in open court. * * *

The prosecution … argues that if Supreme Court had to inquire further, it did so by asking if defense counsel had anything to say. Yet the Court of Appeals has never held that a court may satisfy its obligation merely by allowing the defense to speak. Neither have we. Rather, the law is clear that “the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” … . People v Dupree, 2025 NY Slip Op 00199, First Dept 1-14-25

Practice Point: Here the prosecutor, at sentencing, expressed disagreement with exculpatory statements attributed to defendant in the presentence report but neither defendant nor defense counsel chose to address the issue when given the opportunity by the judge. The prosecutor’s reference to the statements triggered the need for an inquiry by the judge into whether the plea was knowing and voluntary, notwithstanding the silence of the defense. There was no need to preserve the issue for appeal.

 

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