You are here: / First Department

Tag Archive for: First Department

Ladder Which “Kicked Out” from Under Plaintiff Entitled Plaintiff to Partial Summary Judgment/Replacement of Cracked Glass Constituted Covered “Repair” Not Routine Maintenance

The First Department, over a dissent, determined that the replacement of cracked glass in skylight constituted repair rather than routine maintenance, and therefore was a covered activity under Labor Law 240 (1).  A ladder used by the plaintiff to access the skylight “kicked out” from under him:

“The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations,” but only that it “proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person” … . The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting … . A worker’s prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task … .

The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. “Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” … . In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” …; whether the object being replaced was “a worn-out component” in something that was otherwise “operable” …; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement …

.

Here, plaintiff described the panes as being constructed of “heavy plate glass” with wire running through them and stated that they simply “do not crack or wear out over time.” Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. Soriano v St Mary’s Orthodox Church of Rockland, Inc, 2014 NY Slip Op 04419, 1st Dept 6-17-14

 

,

Under NYC Administrative Code, Abutting Owners Have Duty to Maintain Sidewalk in a Reasonably Safe Condition

In reversing Supreme Court, the First Department noted that, pursuant to the NYC Administrative Code, owners of abutting properties are responsible for the safe condition of the sidewalk.  Here it was alleged that defendant’s workers placed garbage bags on the sidewalk which leaked and plaintiff slipped on the slippery sidewalk:

Plaintiff alleges that she slipped on a greasy liquid leaking from garbage bags placed on the public sidewalk by defendant’s workers. Pursuant to Administrative Code of the City of New York § 7-210(b), the owner of property abutting a public sidewalk has a duty to maintain the sidewalk in a reasonably safe condition and is liable for failure to do so … .

Plaintiff’s testimony that she saw defendant’s workers placing garbage bags on the sidewalk in the morning raises issues of fact as to whether defendant is responsible for creating the alleged slippery condition … . Torres v New York City Hous Auth, 2014 NY Slip Op 04425, 1st Dept 6-17-14

 

Insurer of Contractor for Its (Primarily) Interior Work Was Not Entitled to Summary Judgment (Disclaiming Coverage) in Action Stemming from Building Collapse of Unknown Cause

The First Department, over a dissent, determined the insurer was not entitled to disclaim coverage as a matter of law and therefore was not entitled to summary judgment.  The insured (BCS) did (primarily) interior work (painting, carpentry, etc.) in the renovation of a building which included adding two floors.  There was a partial collapse of the building.  The insurer argued that the collapse could not be attributed to any of the specific (mainly interior-work) activities covered in the policy.  The court determined the lack of certainty about the cause(s) of the collapse precluded summary judgment:

Plaintiff issued a commercial lines insurance policy to BCS. The policy’s declarations page stated BCS’s “Business Description” as “Carpentry-Painting-Drywall-Plastering-Tile-Contractor.” Elsewhere, the work to be covered was separated into five separate “classifications,” namely, “Carpentry-Interior,” Painting-Interior-Structures,” “Dry wall or wallboard install,” “Plastering or stucco work,” and “Tile, Stone-Interior construction.” Plaintiff issued an endorsement to the policy clarifying that “[n]o coverage is provided for any classification code or operation performed by the Named Insured not specifically listed in the Declaration of this policy.” Another endorsement provided that the “policy shall not apply to [claims] arising out of operations performed for any insured by independent contractors or acts or omissions of any insured in connection with his general supervision of such operations.” * * *

Plaintiff would be entitled to summary judgment if it could establish that “there is no possible factual or legal basis upon which [it] may eventually be held obligated to indemnify [BCS] under any policy provision” … . In other words, the record before us would have to establish, as a matter of law, that the underlying claim did not arise out of any work BCS did in the areas of interior carpentry, interior painting, dry wall installation, plastering or stucco work (interior or exterior), or interior tile and stone construction. Plaintiff would have to demonstrate conclusively that all of the work out of which the claim arose was performed by an independent contractor.

This record permits no such conclusions,… . Tower Ins Co of NY v BCS Constr Servs Corp, 2014 NY Slip Op 04420, 1st Dept 6-17-14

 

,

New York Courts Do Not Have Jurisdiction Over Intra-Tribal Matters

The First Department determined New York courts do not have subject matter jurisdiction over an election dispute concerning competing tribal councils.  The court also addressed the waiver of sovereignty by a Native American tribe and noted that the jurisdiction of a New York court conveyed by 25 USC 233 does not extend beyond the borders of the state (tribe was located in California):

New York courts do not have subject matter jurisdiction over the internal affairs of Indian tribes” … . “[A]n election dispute concerning competing tribal councils” is a “non-justiciable intra-tribal matter” … . Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. Wells Fargo Bank NA v Chukchansi Economic Dev Auth, 2014 NY Slip Op 04437, 1st Dept 6-17-14

 

, ,

Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

,

General Language—“Disposition”—Limited in Scope by More Specific Words—“Sale or Transfer”

The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a “transaction fee” by plaintiff financial advisor with respect to the defendant’s purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a “transaction fee” for that transaction:

…[T]he motion court unreasonably construed the parties’ agreement in arriving at the conclusion that plaintiff was entitled to a “transaction fee” in connection with defendant’s aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a “transaction fee” following the consummation or closing of a “transaction,” which it defines as the “sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant].” The acquisition in question was admittedly not a “sale” or “transfer.” Nor can it be considered a “disposition,” as plaintiff contends. The term “disposition” does not appear in isolation in the agreement, but as a catch-all at the end of the phrase “sale, transfer or other disposition.” Thus, under the principle of ejusdem generis, the general language “or other disposition” must be construed as limited in scope by the more specific words “sale” and “transfer” that preceded it … . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14

 

A Counteroffer Extinguishes the Initial Offer Which Cannot Be Unilaterally Revived by Subsequent Acceptance

The First Department determined that no binding contract for the sale of real property had been reached after a series of offers and counteroffers.  In the course of the decision, the court noted some of the relevant black letter law:

The record demonstrates that the parties never came to terms and instead proposed a series of offers and counteroffers to which they never mutually agreed. …To enter into a contract, a party must clearly and unequivocally accept the offeror’s terms … . If instead the offeree responds by conditioning acceptance on new or modified terms, that response constitutes both a rejection and a counteroffer which extinguishes the initial offer … . The counteroffer extinguishes the original offer, and thereafter the offeree cannot … unilaterally revive the offer by accepting it … .

…[O]ral acceptance of a written offer can form a binding contract for the sale of real property * * *. Thor Props LLC v Willspring Holdings LLC, 2014 NY Slip Op 04237, 1st Dept 6-12-14

 

,

No Exigent Circumstances to Justify Search of a Closed Container in Defendant’s Possession Upon His Arrest for Minor Non Violent Offenses to Which the Contents of the Bag Could Have Had No Connection

The First Department determined there were no exigent circumstances which justified the search of a plastic bag (closed container0 that was in defendant’s possession at the time of his arrest:

The police detained defendant in a subway station for violating Transit Authority regulations. Because a warrant check revealed that defendant had an active warrant, the police decided to arrest him rather than issue a summons. Defendant was holding a plastic bag in his hand, and put it on the ground next to him before being handcuffed. An officer picked up the bag, which felt heavy, and looked inside to check for weapons or contraband. Inside the bag was another plastic bag, which contained a canvas bag. The officer then noticed a strong odor of marijuana, opened the canvas bag, and found nearly a pound of marijuana.

The People failed to meet their burden of showing exigency. The officers did not testify that they feared for their safety, or that they were concerned that the bag contained evidence that defendant could destroy, and the circumstances did not suggest that any exigency required an immediate search. Defendant was being arrested for minor nonviolent offenses and was not suspected of any crimes, he was handcuffed and guarded by several officers, he was fully cooperative and voluntarily placed the bag on the ground, his demeanor and actions were not threatening, and there was no indication that he might try to grab or kick the bag, which was no longer in his possession. Furthermore, there was no indication that the bag might contain a weapon and, given the nature of the transit violations, there was no possibility that the bag could contain evidence to support those charges. People v Febres, 2014 NY Slip OP 04150, 1st Dept 6-10-14

 

,

NYC Taxi & Limousine Commission Had the Authority to Mandate the Use of a Particular Vehicle as a NYC Taxi

The First Department, in a full-fledged opinion by Justice Saxe, over a dissent, determined that the New York City Taxi and Limousine Commission (TLC) did not exceed its grant of authority under the NYC Charter and did not violate the separation of powers doctrine when it mandated the use of a particular vehicle for taxis in NYC. The TLC essentially designed a vehicle, to be used as New York City medallion taxicabs, which met all of its criteria and then chose a manufacturer, Nissan, to build it. Under the “Taxi of Tomorrow Rules…”, after October 31, 2013, holders of unrestricted medallions who  were scheduled to replace their taxi vehicles were required to buy the Nissan (called the Nissan NV200).  An association of taxi fleet owners brought an action for a declaratory judgment asking the court to find the “Taxi of Tomorrow Rules…” invalid. Supreme Court did so, holding that the TLC had exceeded its powers under the NYC Charter and had essentially crossed the line between administration and legislation. The First Department disagreed and reversed:

Ultimately, the key to determining whether an agency has exceeded the scope of its authority is …in examining the enabling legislation. The scope of the mandate established by City Charter § 2300 is sufficiently expansive to permit the TLC to act as it did. * * *

…[H]ere …the Legislature had clearly articulated its policy regarding the TLC’s assigned task, namely, the goal of ensuring and optimizing the comfort of riders, while protecting the public, the environment, the drivers, and the rights of medallion owners. The TLC was not left to take action based on its own ideas of sound public policy. Even if, arguendo, the TLC’s adoption of the revised Taxi of Tomorrow rules may be characterized as involving policy-making, here, the parameters of that policy-making were set by the City Council in the City Charter.  Greater NY Taxi Assn v New York City Taxi & Limousine Commn, 2014 NY Slip Op 04156, 1st Dept 6-10-14

 

, ,

Ambiguous Termination Notice Will Not Trigger Four-Month Article 78 Statute of Limitations

The First Department explained that when a notice of termination of an at-will employee is ambiguous with respect to finality, the ambiguity is construed against the employer and the four-month statute of limitations for an Article 78 proceeding is not triggered:

Ordinarily, where the employment of an at-will employee, like petitioner, is terminated, the four-month statute of limitations applicable in article 78 proceedings (CPLR 217) begins to run from the date of the termination, notwithstanding the availability of optional administrative review proceedings … . However, where an administrative agency “create[s]; []; ambiguity and [the]; impression of nonfinality,” that ambiguity regarding finality is to be resolved against the agency … .

* * * We find that, notwithstanding the fact that the letter otherwise conveyed the concrete impact ordinarily associated with finality for statute of limitations purposes …, respondent created sufficient ambiguity as to finality such that the language must be construed against it and the petition must be deemed timely. Matter of Burch v New York City Health & Hosp Corp, 2014 NY Slip Op 04060, 1st Dept 6-5-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy