You are here: / First Department

Tag Archive for: First Department

Court Has Inherent Authority to Reinstate Indictment After Dismissal for Legal Insufficiency

The First Department determined the motion court properly exercised its discretion in reinstating the indictment when presented with a portion of the grand jury minutes which had inadvertently been omitted from the original submission.  The court had dismissed the indictment finding the grand jury evidence legally insufficient:

The court had inherent authority to reinstate the indictment …, and defendant’s claim that the indictment was unlawfully amended is without merit, because the text of the indictment remained unchanged. People v Godbold, 2014 NY Slip Op 03624, 1st Dept 5-20-14

 

,

Broker’s Complaint Stated Causes of Action for Breach of Implied Contract and Unjust Enrichment—Complaint Alleged Broker Was Entitled to a Commission Where Defendant Buyers Abandoned the Potential Purchase in which Broker Was Involved and 18 Months Later Purchased Nearly Identical Property from the Same Seller

The First Department, in a full-fledged opinion by Justice Acosta, determined a real estate broker (SPRE) had sufficiently stated causes of action for breach of implied contract and unjust enrichment.  The complaint alleged that the broker introduced the defendants to the developer of condominium units (397 West) and found an architect.  The defendants subsequently informed the broker they were no longer looking to buy.  18 months later the defendants purchased different but nearly identical condominium units from the same developer:

In this appeal, we must determine whether plaintiff broker has alleged facts sufficient to establish its entitlement to a commission on the sale of real estate, where it expended significant effort locating an apartment for buyers who abandoned the transaction and purchased another apartment in the same building 18 months later. In addition, we take this opportunity to clarify the standard by which a broker may be found to have been the “procuring cause” of a real estate transaction. We find that the complaint sufficiently alleges that plaintiff was a direct and proximate link between the introduction of defendant buyers and the seller and the consummation of the transaction to withstand defendants’ motion to dismiss. * * *

“[I];n the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his commission when he [or she]; produces a buyer who is ready, willing and able to purchase at the terms set by the seller” … . A broker does not earn a commission merely by calling the property to the attention of the buyer … . But this does not mean that the broker “must have been the dominant force in the conduct of the ensuing negotiations or in the completion of the sale” (id. at 206). Rather, the broker must be the “procuring cause” of the transaction, meaning that “there must be a direct and proximate link, as distinguished from one that is indirect and remote,” between the introduction by the broker and the consummation of the transaction … . * * *

In the present case, … under the … “direct and proximate link” standard, we find that the allegations in the complaint sufficiently state that SPRE was the procuring cause of defendants’ purchase of the second duplex at 397 West. SPRE brought defendants to the building on several occasions; introduced defendants to the developer and attended several meetings between the developer and defendants; reviewed floor plans with defendants; negotiated favorable terms for defendants on the original units; prepared a deal sheet with defendants’ preliminary offer terms on the first duplex for the developer’s consideration; drafted a contract of sale; and connected defendants with a reputable architect whom SPRE specially selected to implement defendants’ design plans. Affording these allegations a liberal construction, we find that they establish that SPRE’s actions and efforts may have been a direct and proximate link between the introduction of defendants to the developer and defendants’ purchase of the second duplex at 397 West. Whether SPRE was the procuring cause “is a question of fact to be decided on the evidence” … . SPRE Realty Ltd v Dienst, 2014 NY Slip Op 03642, 1st Dept 5-20-14

 

New York Has Not Adopted the “First Clause” Doctrine for Interpretation Contracts with Conflicting Provisions

The First Department noted that New York has not adopted the “first clause” doctrine of contract interpretation with respect to conflicting provisions, i.e., the clause appearing first in the agreement does not necessarily control:

The motion court correctly reconciled apparently conflicting provisions of the partnership agreement, giving meaning to both … . Contrary to plaintiff’s contention, the provision that appears first does not automatically govern, as New York has not adopted the “first clause” doctrine of contract interpretation … . Further, as plaintiff concedes, her interpretation of the contract renders section 6.8(b) superfluous, depriving it of all effect. Section 6.8(a) provides that “[a]; voluntary dissolution (including any dissolution by law resulting from only one Partner remaining . . . following the death . . . of the other Partner(s)) and termination of the Partnership shall override any of the provisions of this Article VI . . . .” Section 6.8(b) of the agreement provides that the partnership will survive the death of a partner if a new partner is admitted no more than 90 days after the death. When read together, these sections provide for dissolution upon the death of a partner unless a new partner is admitted within 90 days … . Le Bel v Donovan, 2014 NY Slip Op 03608, 1st Dept 5-20-14

 

,

No Liability for Out-of-Possession Landlord—No “Significant Structural Defect” and No Code Violation

The First Department determined the out-of-possession landlord could not be held liable for an accident which occurred on a spiral staircase in a restaurant which connected a basement prep kitchen to the main-floor kitchen.  The staircase was not a “significant structural defect” and did not violation any provision of the NYC Administrative Code:

Liability does not lie against defendant out-of-possession landlord because the claimed riser, tread and handrail violations were not significant structural defects … . The staircase was not an “interior stair” as defined in § 27-132 of the NYC Administrative Code …. . Nor were the claimed violations of former §§ 27-127 and 27-128 specific statutory safety provisions that may serve as predicates for defendant landlord’s liability … . It is therefore immaterial whether landlord had notice of the allegedly dangerous condition or retained a right to reenter … . Podel v Glimmer Five LLC, 2014 NY Slip Op 03635, 1st Dept 5-20-14

 

, ,

Party Who Was Both a Plaintiff and a Defendant in a Joint Trial of Two Actions Was Properly Allowed to Have Two Attorneys

The First Department determined a party who was a plaintiff in one case and a defendant in another was properly allowed to have two attorneys in the joint trial.  Pimentel was involved in an automobile accident with Wong.  Wong’s car jumped the curb and crashed into a store, injuring plaintiff Newark. Newark sued Wong and Pimentel and Pimentel sued Wong.  Pimentel was represented in each action by separate attorneys:

The trial court did not abuse its discretion in allowing Pimentel’s interests as a plaintiff in his own action and as a defendant in this action to be represented by separate attorneys (see CPLR 4011…). The court promised to and did exert control over the nature of the dual representation, as necessary, and Pimentel’s defense counsel, whose opening statement, summation, and questioning of witnesses were brief, played a limited role. In any event, in the absence of any evidence of an unfair advantage or prejudice, any error would be harmless. Newark v Hector R. Pimentel, 2014 NY Slip Op 03636, 1st Dept 5-20-14

 

Damage to Building Caused by Faulty Workmanship Not Caused by an “Occurrence” Within the Meaning of a Commercial General Liability Policy

The First Department, in a full-fledged opinion by Justice Saxe, determined that the term “occurrence” in a policy covering building construction work did not encompass damage to the building caused by faulty workmanship.  Here, a portion of an exterior wall fell to the street.  It was determined that the cause was flaws in the way the wall was constructed:

There is no “occurrence” under a commercial general liability policy where faulty construction only damages the insured’s own work …, and faulty workmanship by subcontractors hired by the insured does not constitute covered property damage caused by an “occurrence” for purposes of coverage under commercial liability insurance policies issued to the general contractor, since the entire project is the general contractor’s work … . In Baker Residential v Travelers Ins. Co. (10 AD3d 586, 587 [1st Dept 2004]), where a developer delivered and installed defective structural beams that deteriorated from water penetration due to improper installation, flashing and waterproofing, this Court held that the damages sought by the developer did not arise from an “occurrence” resulting in damage to third-party property distinct from the developers’ own “work product.” And in Direct Travel v Aetna Cas. & Sur. Co., 214 AD2d 484, 485 [1st Dept 1995]), this Court explained that “[s]ince the claims asserted in the underlying action were for economic loss resulting from the plaintiff’s purported breach of contract, coverage was also properly disclaimed under the umbrella policy which covered only damages because of bodily injury’ [or] property damage’ . . . [c]aused by an occurrence'” … . * * *

“[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident’ or occurrence'” … . As the motion court recognized, the addition of “event” or “happening” to the definition of “occurrence” did not alter the legal requirement that the “occurrence” triggering the coverage must be fortuitous. “[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident’ or occurrence'” … . “[A] claim for faulty workmanship, in and of itself, is not an occurrence under a commercial general liability policy because a failure of workmanship does not involve the fortuity required to constitute an accident” … . National Union Fire Ins Co of Pittsburgh PA v Turner Constr Co, 2014 NY Slip Op 03671, 1st Dept 5-15-14

 

,

Out-of-Possession Landlord Not Liable for Injury Caused by Trash Compactor on Property

The First Department determined an out-of-possession landlord had no liability for an injury caused by a trash compactor located on the property:

[Defendant] demonstrated that as an out-of-possession owner it had no responsibility for the complained-of defect, because the defect was not a significant structural or design defect that was contrary to a specific statutory safety provision … . In support of his position that the trash compactor is a structural component of the building, plaintiff cited Administrative Code of City of NY § 27-232 (defining “Service Equipment” to include “refuse disposal”). However, that provision is not a safety provision. Plaintiff’s argument that as an out-of-possession owner [defendant] remained liable for any dangerous condition that existed at the time it net leased the building—four years before the accident—is unavailing, since the net lessee “had reasonable time to discover and remedy the defect” after the conveyance of the property interests … . Humareda v 550A E 87th St LLC, 2014 NY Slip Op 03584, 1st Dept 5-15-14

 

,

Family Court Should Not Have Denied Father’s Request for Son’s Mental Health Records Without an In Camera Review

The First Department determined Family Court should not have denied father’s request for his son’s mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child’s testimony, so the child’s credibility was the central issue:

Respondent father moved to subpoena the eldest child’s (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test … . The statute requires that the court weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery.” Here, the Family Court should have reviewed the child’s mental health records in camera to determine if the records are relevant to the central issue of the child’s credibility before making its disclosure ruling.

The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child’s testimony… . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14

 

,

Church’s Decision to Terminate Minister Constitutionally Protected Under “Ministerial Exception”

The First Department determined a minister who brought a wrongful termination action was, according to the terms of the personnel manual, an at will employee.  In addition the claim was barred by the ministerial exception under which a church’s decisions concerning the employment of a minister are constitutionally protected:

…[T]he ministerial exception also bars plaintiff’s claim, which primarily involves intra-church matters. “Under the ministerial exception’ …, a church’s decision to hire, to fire, and to prescribe the duties of its minister are commonly held to be constitutionally protected” … . Mills v Standing Gen Commn on Christian Unity & Interreligious Concerns, 2014 NY Slip Op 03437, 1st Dept 5-13-14

 

,

Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision

The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:

The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision … , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant’s behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant’s compliance with residential treatment. “[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond” … . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14

 

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