You are here: / First Department

Tag Archive for: First Department

, ,

Dissolved Corporation Amenable to Suit Under New Jersey Law/Substitute Service Upon Insurer of Dissolved Corporation Proper

In an asbestos case, the First Department determined that, under New Jersey law, a dissolved corporation (Jenkins Bros.) was still amenable to suit for pre-dissolution actions, and service of process upon the insurer was appropriate where service on the dissolved corporation was not possible:

In this action for personal injuries allegedly due to asbestos exposure while plaintiffs were employed by Jenkins Bros., a dissolved New Jersey corporation, appellant insurance company, Jenkins’ liability insurer during the relevant time periods, maintains that Jenkins is not amenable to suit based on its bankruptcy and subsequent dissolution. The plain language of the New Jersey dissolution statute, which governs here, provides for a corporation that has been dissolved to “sue and be sued in its corporation name . . . ” (NJSA § 14A:12-9[2]), and the statute places no restriction on how long a dissolved corporation maintains its capacity to be sued for its tortious conduct committed pre-dissolution … . Thus, contrary to appellant’s argument, Jenkins Bros. is amenable to suit pursuant to the laws of the state of its incorporation … .

The motion court properly directed that substituted service be made on appellant. It is undisputed that service was attempted at multiple corporate addresses, to no avail, and that plaintiffs were only able to locate two former corporate representatives. Accordingly, substituted service on the insurer is proper and does not violate due process …. Appellant accepted premiums from Jenkins and agreed to defend and indemnify Jenkins for tortious conduct committed during the coverage periods. This coverage includes liability for conduct that may have led to injuries such as asbestos disease which carries a long latency period between exposure and manifestation of disease … . Matter of New York City Asbestos Litig, 2014 NY Slip Op 02686, 1st Dept 4-17-14

 

,

Defense Counsel, Not Defendant, Has the Ultimate Authority to Determine Whether Defendant Should Testify Before the Grand Jury

The First Department (after noting that the record supported closing the courtroom for the undercover officer’s testimony, even though the trial court did not discuss alternatives) determined the trial court properly found defense counsel had the ultimate authority to decide whether defendant should testify before the grand jury and therefore properly denied defendant’s request to testify against the advice of his attorney:

Criminal Court … properly determined that defense counsel had the ultimate authority to decide whether his client should testify before the grand jury, and properly denied defendant’s request to testify against the advice of his attorney. Defendant’s argument “incorrectly equates the right to testify before the grand jury with the right to testify at trial” … . “[U]nlike certain fundamental decisions as to whether to testify at trial, which are reserved to the defendant . . . with respect to strategic and tactical decisions like testifying before the grand jury, defendants represented by counsel are deemed to repose decision-making authority in their lawyers” … . The strategic decision to testify before the grand jury requires the “expert judgment of counsel” …, because it involves weighing the possibility of a dismissal, which, in counsel’s judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses. People v Brown, 2014 NY Slip Op 02683, 1st Dept 4-17-14

 

,

Evidence of a Prior Crime Not Admissible to Prove Intent and Not Admissible As Part of a Common Scheme or Plan/Conviction Reversed

The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined the admission of evidence of an uncharged crime to demonstrate defendant’s intent required reversal because (1) the proof was not ambiguous about defendant’s intent, and (2) the prior crime was not so similar to the charged crime that it proved the existence of a common scheme or plan.  Defendant was charged with theft of a ring from a man named Cushman.  Extensive proof that defendant had previously stolen jewelry from another person was allowed:

Where intent is at issue but cannot be readily inferred from the commission of the act itself, evidence of prior criminal acts may be used to establish it … . Where, however, proof of the act demonstrates that the defendant acted with the requisite state of mind, Molineux evidence should not be admitted … . Here, proof of defendant’s actions is sufficient to demonstrate that he acted with the requisite intent. Spraying someone in the face with mace, grabbing the person’s ring and running can only indicate an intent to steal the ring. If the jury believed Cushman’s testimony, then it would have to infer that defendant intended to steal the ring from him.   * * *

Nor was [the prior crime evidence] admissible under the common plan or scheme exception, which requires that “there exist[] a single inseparable plan encompassing both the charged and the uncharged crimes” … . “There must be such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations'” …. Indeed, the Court of Appeals noted that “courts have been particularly cautious in permitting proof of uncharged criminal acts to establish a common scheme or plan” … . Evidence that is merely indicative of a modus operandi is not sufficient. “[A] modus operandi alone is not a common scheme; it is only a repetitive pattern” … . What is generally required is evidence of “uncharged crimes committed in order to effect the primary crime for which the accused has been indicted” … . People v DeGerolamo, 2014 NY Slip Op 02698, 1st Dept 4-17-14

 

1/2 Inch Variation in Stair-Step Height (In Violation of Fire Safety Code) Established Negligence

The First Department determined plaintiff had established a case of negligence based upon a 1/2 inch height differential among stair steps where plaintiff fell:

Plaintiff’s expert supported her opinion that the stairway was defective “by nonconclusory reference to specific, currently applicable safety standards or practices” … . Section 5-2.2.2.4 of the National Fire Protection Association Life Safety Code [1994] requires that there can be no variation exceeding three sixteenths of an inch “in the depth of adjacent treads or in the height of adjacent risers and the tolerance between the largest and smallest tread cannot exceed ⅜.” Plaintiff’s expert identified the Life Safety Code Handbook as a published authoritative and nationally recognized accepted industry standard for safe staircase construction and maintenance in the field of architecture. When asked if plaintiff’s expert was correct in that regard, defendant’s expert replied “yes.” …  The trial court’s finding that the 1994 Life Safety Code is applicable because the stairs were renovated in 1996, when defendant constructed a new tile floor directly on top of an existing floor on the second floor landing, which created the height differential in the location where plaintiff lost her balance, is supported by a fair interpretation of the evidence. … Thus, plaintiff’s expert testimony that the one half inch differential caused plaintiff’s fall established a case of negligence against defendant. Rondin v Victoria’s Secret Stores LLC, 2014 NY Slip Op 02664, 4-17-15

 

Proof that a Floor is Inherently Slippery, Standing Alone, Will Not Support a Negligence Cause of Action

The First Department determined summary judgment dismissing the slip and fall complaint was properly granted.  Plaintiff, who suffered from dementia, did not remember the fall and proof the floor was inherently slippery, without more, was insufficient to support the action:

The duty of an owner of property to maintain his or her premises so that they are reasonably safe …extends to any hazardous condition about which the owner has actual or constructive notice. Except where the landowner created the defective condition, thereby affording actual notice …, it is incumbent upon the injured party to establish that the condition was either known to the owner or had existed for a sufficient period of time to have allowed the owner to discover and correct it

Here, plaintiff is alleged to have fallen as a result of a slippery floor. Plaintiff was unable to supply any information about the circumstances of the accident. Plaintiff failed to explain how she took two or three steps from a chair in the procedure room and slipped and fell down the basement stairs that were located in the back of the adjacent waiting room. As pointed out by defendant, “Plaintiff would have had to slipped [sic] all the way across the length of the office (waiting room) and made a 180 degree turn before reaching the top of the stairs.” Moreover, [plaintiff’s daughter] conceded that she did not know what caused her mother to fall and had not noticed that the floor was slippery. Finally, there is no evidence of any prior injury or complaint about the floor to support the conclusion that [defendant] should have known about the allegedly hazardous condition … . Proof that a floor is “inherently slippery,” standing alone, is insufficient to support a cause of action for negligence…, and the complaint was properly dismissed. Caicedo v Sanchez, 2014 NY Slip Op 02663, 1st Dept 4-17-14

 

Homeowner’s Exemption Applied/Fact that Three Unrelated Families Lived in the Home Did Not Negate the Finding that the Home Was a Single Family Dwelling

The First Department determined defendants were entitled to dismissal of the complaint on the basis of the homeowner’s exemption to liability under Labor Law 241(6).  The fact that three unrelated families lived in the home did not negate the finding that the home was a single-family dwelling:

Under the homeowner exemption, “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from liability under Labor Law § 241(6). Here, defendants established that the premises was a single-family dwelling by submitting affidavits stating that they purchased the premises solely as a second residence for use by family and guests, that they had never used any of the portion of the premises for a commercial purpose, and that the barn in which plaintiff was injured was being converted into a recreational room for personal use … . Moreover, the affidavits of plaintiff’s employer and supervisor stating that they supervised plaintiff’s work and provided plaintiff with the tools for his work, including the saw that caused his injuries, along with defendants’ affidavits stating that they were not on site during the construction work, show that defendants did not direct, supervise, or control plaintiff’s work… . …

To the extent plaintiff’s affidavit states that three different unrelated families, including defendants’ family, the household staff, and the groundskeeper, lived at the premises, such is insufficient to negate a finding of a single-family dwelling. Under the circumstances presented, defendants and their staff were “living together and maintaining a common household” … . Furthermore, the certificate of occupancy lists all of the buildings under one address, and the alteration work on all of the buildings was covered by one building permit, also listing one address … .  Patino v Drexler, 2014 NY Slip Op 02537, 1st Dept 4-15-14

 

,

Brazilian Citizens Had Alternative Legal Remedies and Therefore Could Not Use a Writ of Prohibition to Stop a New York Prosecution/The Fact that the Petitioners Would Have to Come to New York to Employ the Alternative Remedies During the Course of a Criminal Prosecution Did Not Render those Remedies Inadequate

The First Department determined a writ of prohibition could not be employed by Brazilian citizens to stop a prosecution by the district attorney.  Petitioners had other legal remedies including pretrial motions and appeal if convicted.  The fact that petitioners would have to defend the prosecution in New York to use the alternative remedies did not render those remedies inadequate:

In this action for a writ of prohibition directing the DA to stay the prosecution of petitioners, Brazilian citizens (the former mayor of Sao Paolo and his son) who have been indicted in New York for crimes relating to the theft of more than $11 million in Brazilian public funds that were allegedly transferred to petitioners’ account in a bank located in New York, the petition was properly denied. The extraordinary remedy of prohibition is not available to petitioners, who assert that the underlying criminal action violates their statutory and constitutional rights to a speedy trial and their right to due process, or, in the alternative, that the indictment should be dismissed either in furtherance of justice pursuant to CPL 210.40(1) or under principles of international comity. These claims allege errors of law for which petitioners have adequate alternative remedies, including filing pretrial motions in the underlying criminal action and challenging any conviction on appeal … . That petitioners would have to voluntarily leave their home country to appear for arraignment since Brazil will not extradite its own citizens before availing themselves of such remedies does not render them inadequate … . Matter of Naluf v Vance, 2014 NY Slip Op 02546, 1st Dept 4-15-14

 

,

Proceedings Pursuant to CPL 440.10 Required to Determine Whether Defense Counsel Was Ineffective for Failing to Move to Reopen the Suppression Hearing When Trial Evidence Called Into Question the Arresting Officer’s Credibility

The First Department, over a dissent, found that  the trial record was insufficient to determine whether defendant’s counsel was ineffective for failing to ask to reopen a suppression hearing when the trial evidence called into question the arresting officer’s credibility.  The conviction was affirmed without prejudice and the matter was sent back for further proceedings under a motion to vacate the conviction pursuant to CPL 440.10:

The issue of effective assistance of counsel is generally not reviewable on direct appeal, because it involves facts dehors the record, such as trial counsel’s strategy … . Accordingly, a defendant who seeks to bring an ineffective assistance of counsel claim usually must first expand the record by way of a CPL 440.10 motion before this Court can consider it … . However, there are rare instances where the full record is sufficient to resolve the issue of counsel’s effectiveness without a 440.10 motion … . This is not one of those rare cases.  * * *

The extant record potentially supports a finding that counsel fundamentally misunderstood the necessity of making the motion to reopen the suppression hearing during trial, rather than waiting for a motion to set aside the verdict, in the event of a conviction. Defense counsel’s remarks at sentencing, seemingly prompted by the court’s denial of the motion to set aside the verdict, were a belated attempt to explain counsel’s failure to move to reopen the hearing. Whether defense counsel was effective or not necessarily requires an evaluation of the credibility and logic of the proffered explanation, that defense counsel was afraid he would “lose that jury” and that he believed the witness “was on the ropes.” Although defense counsel may have genuinely been hopeful that the jury would acquit his client, this explanation cannot be accepted at face value. After all, as the trial court’s decision indicates, had defense counsel timely moved to reopen the suppression hearing, the application would have been granted, and the court could have quickly ruled upon it while giving the jury a short recess. The “witness” referred to was the arresting officer, and was available. On the other hand, there may have been legitimate concerns about the jury undeveloped on this record. In short, we cannot decide on the extant record whether defense counsel’s failure to move to reopen the hearing was truly “strategic.”  People v Medina-Gonzalez, 2014 NY Slip Op 02531, 1st Dept 4-15-14

 

,

Age Discrimination and Retaliation Claims Survived Summary Judgment

The First Department, over a dissent, determined plaintiff had raised questions of fact about both her age-discrimination and her retaliation claims.  The findings were entirely fact-based and centered on evidence the non-discriminatory motives asserted were pretextual.  A sample follows:

Defendants failed to demonstrate that they did not discriminate against plaintiff on the basis of her age … . Plaintiff, who was 49 when she was hired by defendant Concentric Health Care LLC, was among the oldest of Concentric’s approximately 70 employees, was qualified for her position of billing manager, and was subjected to a disadvantageous employment action, i.e. termination. Defendant Ken Begasse, Jr. (Junior), a principal of Concentric, testified, in effect, that Concentric, an advertising agency serving the pharmaceutical industry, preferred to hire younger workers because they tended to be cheaper and advertising is generally a “young industry.”

Defendants contend that they terminated plaintiff because they were in financial trouble and their independent consultant recommended terminating plaintiff and replacing her with an employee whose annual salary would be $40,000 less than hers. However, the independent consultant made this recommendation, and others, in February 2009, and, although defendants terminated a number of people based on these recommendations, they did not terminate plaintiff until November 2009, some nine months later. Moreover, Junior and defendant Michael Sanzen, another of Concentric’s principals, testified that, in the months after the consultant made his report, new employees were hired and at least one existing employee was given a $20,000 raise. Thus, issues of fact exist as to whether defendants’ proffered explanation of financial distress is pretextual … .

Issues of fact also exist as to whether defendants’ proffered explanation of poor performance is pretextual. The only documentary evidence of poor performance is a negative review that plaintiff received in September 2009, and there is evidence that, by this time, defendants had already decided to terminate her. Indeed, the review prepared by plaintiff’s immediate superior, Concentric’s comptroller, was only mildly critical of plaintiff; defendant Ken Begasse, Sr. (another of Concentric’s principals) intervened and added extensive negative comments. In an earlier employee review (December 2007), plaintiff had been lauded as “an outstanding professional with vast experience and very high standards,” who “keeps the company’s interest foremost in her mind,” and “always seems to get the work done and done properly.”  McGuinness v Concentric Health Care LLC, 2014 NY Slip Op 02534, 1st Dept 4-15-14

 

, ,

Eviction Based Upon Firearm and Drugs Found in Petitioner’s Apartment Affirmed Despite the Lack of Evidence Petitioner Was Aware the Items Were In the Apartment (Apparently They Were Brought Into the Apartment by Her Older Children) and Despite Petitioner’s Unblemished Record as a Tenant

The First Department reversed Supreme Court and upheld the New York City Housing Authority’s eviction of petitioner based upon the police finding marijuana, oxycodone and an operable firearm in petitioner’s apartment.  Petitioner was not in the apartment at the time the items were found, and there was evidence the items were brought into the apartment by petitioner’s older children.  There was no evidence petitioner was aware the items were in the apartment.  Supreme Court had determined eviction “shocked the conscience” because petitioner had lived in the apartment for 23 years and had an otherwise unblemished record.  The First Department reinstated the eviction order:

…[W]e review the sanction of termination in accordance with the standard set forth in Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County (34 NY2d 222 [1974]). There, the Court of Appeals defined a penalty that is unsustainable as “shocking to one’s sense of fairness” as one which

“is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly [situated]” (34 NY2d at 234).

Applying this standard, we find that the facts here support petitioner’s eviction. Eviction is undoubtedly a “grave” sanction. However, in permitting drugs and a lethal weapon to be present in her apartment, petitioner committed a serious breach of the code of conduct that is critical to any multiple dwelling community, and which warrants the ultimate penalty … . Petitioner’s neighbors have a right to live in a safe and drug-free environment, and petitioner significantly compromised their ability to do so, her alleged ignorance of the activities in her apartment notwithstanding … . Matter of Grant v New York City Hous Auth, 2014 NY Slip Op 02535, 1st Dept 4-15-14

 

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