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DEFENSE COUNSEL LEFT A PROFFER SESSION MIDWAY THROUGH THE PROCEEDINGS; DURING THE PROFFER SESSION DEFENDANT MADE AN INCRIMINATORY STATEMENT WHICH WAS USED TO IMPEACH HIS CREDIBILITY AT TRIAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel should have been granted. Defense counsel left a proffer session midway through the proceedings:

Supreme Court erred in finding that defendant failed to satisfy his burden of establishing that he received ineffective assistance of counsel when his counsel absented himself from a proffer session midway through the session. Absent an express waiver from defendant, counsel had an obligation to be present during the session and to “be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him” … . Under the circumstances, where counsel advanced no sound strategic reason behind his decision to leave the proffer session, his absence deprived defendant of meaningful representation at a critical stage in the proceeding … . Defendant was prejudiced by counsel’s absence, because a statement defendant made during the proffer session implicating himself in the burglaries for which he was ultimately tried and convicted for, was successfully used by the prosecution to impeach defendant’s credibility at the trial … . People v Anonymous, 2026 NY Slip Op 00980, First Dept 2-19-26

Practice Point: A proffer session is a critical stage of a criminal proceedings at which a defendant may incriminate himself. Here defense counsel’s leaving a proffer session midway constituted ineffective assistance warranting vacation of the conviction.

 

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THE JUDGE FAILED TO COMMUNICATE WITH THE OHIO COURT AFTER LEARNING OF ANOTHER CUSTODY-RELATED PROCEEDING THERE AND FAILED TO CONSIDER WHETHER IT SHOULD EXERCISE TEMPORARY EMERGENCY JURISDICTION BASED ON ALLEGATIONS OF DOMESTIC VIOLENCE IN MOTHER’S PETITION (FIRST DEPT).

The First Department, reversing Family Court, determined the judge committed reversible error by failing to communicate with the Ohio court after learning of another custody-related proceeding there. In addition, the judge failed to consider whether to exercise temporary emergency jurisdiction to protect mother and child. Mother’s custody petition alleged serious domestic violence:

Family Court failed to satisfy the procedural mechanism required by the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law, art 5-A) when a custody-related proceeding is pending in another state. Specifically, after the court became aware of the Ohio proceeding, the record does not reflect that the court attempted to communicate with the Ohio court, which is a reversable error … . * * *

… Family Court failed to comply with the statutory requirement to consider, under the circumstances presented and in light of the serious allegations of domestic violence in the mother’s petition, whether it was necessary to exercise temporary emergency jurisdiction to protect the mother and the child … . Matter of Shelby C.V. v Joshua W.K, 2026 NY Slip Op 01002, First Dept 2-17-26

Practice Point: It is reversible error for a judge to fail to communicate with a court in another jurisdiction after learning of another custody-related proceeding there.

Practice Point: Allegations of domestic violence may trigger the statutory requirement that a judge consider exercising temporary emergency jurisdiction to protect family members.

 

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PLAINTIFF’S CLAIMS OF DISCRIMINATORY NON-PROMOTION AND TERMINATION PURSUANT TO THE NYC AND NYS HUMAN RIGHTS LAW WERE SUFFICIENT AT THE PLEADING STAGE AND SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s claims of discriminatory non-promotion and termination pursuant to the NYS and NYC Human Rights Law were sufficient for the pleading stage and should not have been dismissed:

Plaintiff’s allegation that he, an African American, was terminated from his job by defendant, his employer, after making one mistake while two of his white coworkers who made similar mistakes were neither reprimanded nor terminated was sufficient to state a claim for discriminatory termination under the broad protections of the State and City HRLs … . Plaintiff specifically alleged that one of the white coworkers was an IT Help Desk Technician, the same position he held, and that the coworker performed substantially similar work under similar working conditions. He further alleged that he helped fix some of the mistakes that this coworker had made in the past. These allegations were sufficient at the pleading stage … .

In support of his cause of action for failure to promote, plaintiff alleges that his coworker was promoted to a job that he was already performing, and that the position was not posted prior to it being filled. These allegations are sufficient to meet plaintiff’s pleading burden as this Court has previously held that it is unnecessary for a plaintiff to allege that he applied for a promotion where he has alleged that promotions were typically made unannounced and unsolicited (id.) or where defendant failed to advertise the position … . Altidor v Medical Knowledge Group LLC, 2026 NY Slip Op 00870, First Dept 2-17-26

Practice Point: Consult this decision for insight into the pleading requirements for claims of discriminatory non-promotion and termination pursuant to the NYS and NYC Human Rights Law.

 

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THE FIRST DEPARTMENT RULED THAT PLAINTIFF-TENANTS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT DEFENDANTS ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS WHILE RECEIVING J51 TAX BENEFITS; THE COURT OF APPEALS REVERSED (CT APP).

The First Department, in a full-fledged opinion by Justice Kennedy, over a comprehensive, two-justice dissenting opinion, determined plaintiff-tenants did not demonstrate, as a matter of law, a fraudulent scheme on the part of the defendants re: deregulation of apartments while receiving J51 tax benefits. The Court of Appeal reversed and remitted:

From the First Department decision:

The issues presented on this appeal are (1) what is the appropriate base date rent for calculating damages and (2) whether the record before us sets forth evidence of a fraudulent scheme to deregulate the subject apartments to permit use of the default formula pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2526.1(g). * * *

… [W]e conclude that the record before us did not establish evidence of a fraudulent scheme to deregulate the subject apartments as a matter of law, and that it was improper to utilize the default formula to calculate damages … . Aras v B-U Realty Corp., 2023 NY Slip Op 04917, First Dept 10-3-23

Reversed by the Court of Appeals: Aras v B-U Realty Corp., 2026 NY Slip Op 00637. CtApp 2-11-26

 

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PLAINTIFF WAS HIT BY A FALLING CHISEL WHILE SITTING UNDER A SIDEWALK BRIDGE AT THE WORKSITE TAKING A BREAK; THE CHISEL SHOULD HAVE BEEN SECURED AND THE SCAFFOLDING ABOVE PLAINTIFF WAS INADEQUATE TO PROTECT HIM FROM A FALLING OBJECT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this falling-object case was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was sitting underneath a sidewalk bridge on the jobsite, taking a break, when he was struck by a chisel. The chisel should have been secured and the scaffolding above plaintiff had gaps and therefore failed to provide adequate protection. Plaintiff did not have to prove where the chisel came from:

… “[I]njuries sustained while a worker was on site, although . . . on a break, come within the protections of Labor Law § 240(1)” … .

Plaintiff established that the chisel “required securing for the purposes of the undertaking” and that the scaffolding “proved inadequate” to protect him … . It is irrelevant that plaintiff did not know where the chisel fell from, or what caused it to fall, or hear anything fall, as “plaintiff is not required to show exactly how the [object] fell” … . Any alleged inconsistency concerning the location of the accident is immaterial … . Similarly, it does not matter where the chisel struck plaintiff’s body, as it is undisputed that it struck him. … [P]laintiff alleges without contradiction that the scaffolding was defective … , including the existence of gaps between the scaffolding planks. Contreras v City of New York, 2026 NY Slip Op 00612, First Dept 2-10-26

Practice Point: In a Labor Law 240(1) falling-object case, a plaintiff need not prove where the object came from.

 

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PLAINTIFF ALLEGED SHE WAS COVERED AS AN ADDITIONAL INSURED UNDER THE POLICY AND ATTACHED A CERTIFICATE OF INSURANCE TO HER COMPLAINT; A CERTIFICATE OF INSURANCE IS NOT SUFFICIENT PROOF OF THE EXISTENCE OF AN INSURANCE CONTRACT; PLAINTIFF’S COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint alleging plaintiff was an additional insured based upon the certificate of insurance should have been dismissed. A certificate of insurance does not prove the existence of an insurance contract:

Only those named as an insured or additional insured on an insurance policy are entitled to coverage … . As the party claiming coverage, plaintiff bears the burden of showing that the policy covers her … .

Supreme Court should have granted [the insurer’s] motion to dismiss the complaint because plaintiff failed to plead facts showing that she was covered under the policy. The certificate of liability insurance is insufficient to prove that plaintiff was an additional insured because “[a] certificate of insurance is only evidence of a carrier’s intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists” … . Furthermore, the certificate contains a disclaimer stating that it was “issued as a matter of information only and confers no rights upon the certificate holder” … . Itzhak v Briarwood Ins. Servs. Inc., 2026 NY Slip Op 00616, First Dept 2-10-26

Practice Point: A certificate of insurance is not proof of the existence of an underlying insurance contract. Here plaintiff relied solely on a certificate of insurance to allege she was covered under the policy as an additional insured. That was not enough to state a cause of action.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:

… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.

… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *

Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime.  People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26

Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.

Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.

 

THE E-MAIL SERVICE OF A NOTICE OF ENTRY BY THE NEW YORK STATE ELECTRONIC FILING SYSTEM (NYSCEF) “SHALL NOT CONSTITUTE SERVICE OF ENTRY BY ANY PARTY;” BECAUSE PLAINTIFF DID NOT SERVE THE NOTICE OF ENTRY ON DEFENDANTS AFTER REMAND BY THE APPELLATE COURT, THE DEFENDANTS’ TIME TO ANSWER NEVER STARTED RUNNING; THE DEFAULT JUDGMENT WAS VACATED (FIRST DEPT).

The First Department, reversing the default judgment, held that defendants’ time to answer after remand by the appellate court never started running because plaintiff never served the notice of entry. The New York State Courts Electronic Filing system’s (NYSCEF’s) transmission of notification of entry to e-mail service addresses “shall not constitute service of entry by any party:” Adago v Sy, 2026 NY Slip Op 00571, First Dept 2-5-26

 

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THE A-FRAME LADDER PLAINTIFF WAS USING WHEN HE FELL WAS DEFECTIVE AND LABOR LAW 240(1) APPLIED ON THAT GROUND ALONE; EVEN IF THE LADDER HAD NOT BEEN DEFECTIVE, LABOR LAW 240(1) WOULD STILL APPLY BECAUSE THE LADDER WOBBLED AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK; THERE IS NO EXCEPTION TO THE APPLICABILITY OF LABOR LAW 240(1) WHERE A LADDER-FALL IS PRECEDED BY AN ELECTRIC SHOCK (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was standing on an A-frame ladder when he he was shocked by a live electric wire and fell. At the time he was shocked, he felt the ladder wobble. That evidence was sufficient for summary judgment. There is no exception under Labor Law 240(1) for a fall which follows an electric shock:

… [T]he statute applies here because the ladder was defective. Plaintiff’s deposition testimony and the photographs provided clearly demonstrate that the ladder, which was the only one available for the work plaintiff was required to perform, had two bent and curved crossbeams and worn rubber feet. The general contractor’s corporate safety manager confirmed that the ladder was defective when he stated at his deposition that if he had observed a ladder with the damage depicted in the photographs, he would have replaced the ladder and taken it out of service.

Even if the ladder had been stable, this would have been no impediment to a claim under section 240 … . Plaintiff submitted evidence that the ladder was an inadequate safety device because it failed to provide adequate protection against the gravity-related risk inherent in the work he was performing. Plaintiff testified that when he removed his hand from the wires that shocked him, the ladder immediately “moved, wobbled and shifted,” establishing that it failed to adequately support and protect him from the gravity-related risk … . Szczesiak v Ery Tenant LLC, 2026 NY Slip Op 00600, First Dept 2-5-26

Practice Point: Plaintiff fell from a ladder which wobbled after he received an electric shock. The fact that the ladder wobbled was proof it was not an adequate safety device. The electric shock was not relevant to the applicability of Labor Law 240(1).​

 

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ONE DEFENDANT PROVED HE DID NOT RESIDE AT THE ADDRESS WHERE SERVICE OF PROCESS WAS MADE; AND PLAINTIFF FAILED TO PROVE THE PROCESS SERVER EXERCISED “DUE DILIGENCE” IN ATTEMPTING TO SERVE THE OTHER DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the default judgments against De La Cruz-Ramos and Mosquea should have been vacated. De La Cruz-Ramos proved he did not reside at the address where service of process was made. And plaintiff did not prove the process server exercised due diligence in serving Mosquea before resorting to “nail and mail.” The attempts to serve Mosquea were all made during working hours:

De La Cruz-Ramos [submitted] his own affidavit averring that he had moved from the address where service was made, as well as a lease confirming that he had moved before the date of service … . * * *

Mosquea contends that the service was defective because the process server did not exercise “due diligence” in seeking to effectuate service on defendant before resorting to nail-and-mail service (CPLR 308[4]). Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at her residence on three different occasions, at different times of day … . As Mosquea argues, however, all of the dates of attempted personal service upon him were during the work week and during normal business hours in the same afternoon window. Thus, plaintiff did not establish the due diligence necessary to resort to nail and mail service … . Unitrin Safeguard Ins. Co. v Della-Noce, 2026 NY Slip Op 00601, First Dept 2-5-26

Practice Point: Here the process server made three attempts to serve a defendant at the same time of day, during work hours. The process server, therefore, did not exercise “due diligence” before resorting to nail and mail.

 

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