You are here: / First Department

Tag Archive for: First Department

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

 

, , ,

No Actionable Violations by Bank Re: Overdraft Charges/Overdraft Charges Are Not Interest

The First Department determined plaintiff had not stated causes of action against a bank based in part upon alleged violations of statements in a checking-account brochure issued by the bank.  The complaint challenged the method used by the bank to impose overdraft charges on plaintiff’s checking account, alleging breach of contract, violations of General Business Law 349 and usury.  With respect to the General Business Law and usuary causes of action, the court wrote:

To state a claim under General Business Law § 349, “a plaintiff must allege that the defendant has engaged in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof” … . A ” deceptive act or practice'” is defined as “a representation or omission likely to mislead a reasonable consumer acting reasonably under the circumstances'” … * * *  Plaintiff makes no claim that the applicability of his overdraft protection was not disclosed to him. * * *

The third cause of action, alleging usury, was properly dismissed because, as found by the motion court, overdraft charges are not interest. “If an instrument provides that the creditor will receive additional payment in the event of a contingency beyond the borrower’s control, the contingent payment constitutes interest within the meaning of the usury statutes” … . Even assuming a debtor-creditor relationship between the parties, the contingency of an account overdraft would have been within plaintiff’s control … . Feld v Apple Bank for Sav, 2014 NY Slip Op 02662, 1st Dept 4-17-14

 

,

Quantum Meruit and Unjust Enrichment Causes of Action Should Not Have Been Dismissed

The First Department reversed Supreme Court and found plaintiff had sufficiently pled the causes of action for quantum meruit and unjust enrichment.  Plaintiff lived with and took care of an elderly woman for six years, an obligation undertaken by the defendant.  Although plaintiff was given room and board, as well as health insurance, by the defendant, she was never paid for her work.  The suit was based upon plaintiff’s allegation that defendant had promised to compensate her. The Supreme Court found the “compensation-promise” allegation incredible because plaintiff worked for six years without pay. The First Department noted that whether the “compensation-promise” allegation was credible was solely a matter for the jury.  The court explained the elements of quantum meruit and unjust enrichment:

Generally, under the doctrine of quantum meruit, “the performance and acceptance of services gives rise to the inference of an implied contract to pay for the reasonable value of such services” … . To state a cause of action for quantum meruit, plaintiff must allege “(l) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … .

Allegations that plaintiff provided personal services in good faith … on behalf of defendant … are sufficient. Similarly, plaintiff has sufficiently alleged the element of acceptance via allegations that defendant, inter alia, placed her on … group insurance, filed tax returns on her behalf, and submitted visa applications in which she represented that plaintiff was an employee … . * * *

Similarly, plaintiff has sufficiently alleged, at this juncture, that defendant … was unjustly enriched at her expense. To state a cause of action for unjust enrichment, a plaintiff must demonstrate “that (1) defendant was enriched, (2) at plaintiff’s expense, and (3) that it is against equity and good conscience to permit [] defendant to retain what is sought to be recovered” … . A person may be unjustly enriched not only where she receives money or property, but also where she otherwise receives a benefit … . Such a benefit may be conferred where the person’s debt is satisfied or where she is otherwise saved expense or loss … .

* * * The fact that plaintiff may have been compensated, in part, by room and board and health insurance, is not dispositive on the question of whether she received adequate compensation for her services, and does not bar the claim at the pleading stage … . Farina v Bastianich, 2014 NY Slip Op 02661, 1st Dept 4-17-14

 

, ,

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

 

, ,

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

 

,

Where Defendant Abutting Property Owner Has Cleared a Snow-Free Path on the Abutting Sidewalk There Will Be No Liability for a Fall in “Non-Cleared” Area

The First Department determined the clearance of a snow-free path on a sidewalk by the defendant abutting property owner created a reasonably safe condition and defendant could not be held liable for plaintiff’s fall in a non-cleared area:

A property owner … has a duty to keep a sidewalk abutting its property sufficiently clear of snow and ice so that the sidewalk is maintained in a “reasonably safe condition” (see Administrative Code of City of NY § 7-210). The property owner will have discharged its duty if a snow-free path is cleared between the street and the sidewalk within a reasonable walking distance of the property, since it is not reasonably foreseeable that a person would attempt to climb over a significantly obstructive curbside mound of snow rather than walk to a nearby unobstructed path … . Since plaintiff’s accident resulted, by his own account, from his unforeseeable decision to climb over the knee-high heap of snow, it is of no moment whether he lost his footing before or after he planted his foot on the sidewalk. McKenzie v City of New York, 2014 NY Slip Op 02533, 1st Dept 4-15-14

 

,

Expert Opinion About Link Between Trauma and a Stroke Erroneously Precluded/Frye Hearing Erroneously Ordered/The Opinion Evidence Was Not Controversial and Was Sufficiently Supported by the Relevant Literature to Obviate the Need for a Frye Hearing

The First Department, in a full-fledged opinion by Justice Saxe, with a concurring and a dissenting opinion, found that the trial court erred in precluding plaintiff’s experts from testifying about a causal link between an automobile accident and a subsequent embolic stroke.  The First Department further concluded that the opinion testimony about the causal link was supported by enough relevant literature to obviate the need for the Frye hearing which was (erroneously) ordered by the trial court.  The First Department went on to criticize the defense’s submission of motions in limine on the eve of trial, which, when erroneously granted, led to the plaintiff’s inability to make a prima facie case.  With respect to the criteria for a Frye hearing, the court wrote:

We reject the trial court’s determination that a Frye hearing was necessary. In the first place, defendants’ moving papers failed to justify the need for a Frye hearing at all. The affidavit by defendants’ expert in support of the motion merely asserted that the expert had “conducted a search of the relevant medical literature” and had found no support for plaintiff’s theory that the trauma from a motor vehicle collision caused the embolic stroke. Notably, defendants’ expert did not even point to literature or studies disproving such a link. Therefore, when, in response, plaintiff’s expert provided proof that literature supporting the theory existed and had been published in reputable professional journals and cited or discussed in others, the basis for defendants’ claim was negated; no factual issue was presented. At that point, it was up to the jury to decide whether to accept the assertion that the physical impact experienced by plaintiff in this accident was a competent producing cause of the embolic stroke.

Contrary to the dissent’s assertion, the opinion of plaintiff’s expert that the impact of the collision was a competent producing cause of the dislodgement of a clot, resulting in his stroke, is not the type of novel theory of causation that necessitates a Frye hearing; it was merely an opinion explaining the physiological process that caused the stroke plaintiff suffered.

Even assuming that the assertion by defendants’ expert warranted an evidentiary hearing to assess the reliability of plaintiff’s expert’s causation claims, the evidence presented at the Frye hearing sufficiently established the reliability of those claims.

Frye hearings are used “to determine whether the experts’ deductions are based on principles that are sufficiently established to have gained general acceptance as reliable” … . The test is particularly useful for newly minted or experimental processes or newly posited psychological theories, in order to weed out baseless and unreliable theories; a Frye hearing “should be held only if the basis for the expert’s conclusion is novel” … . “[W]here the proposed expert testimony concerns a claim that the plaintiff’s injury was caused by the actions taken by the defendants, the whole concept of the Frye analysis is of limited applicability” ….

As the [2nd] Department observed in Zito v Zabarsky (28 AD3d 42, 44…), “general acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion. Rather it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” There is no need here for the consensus the dissent claims is necessary. Sadek v Wesley, 2014 NY Slip Op 02551, 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