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TENANTS AND THE PROPERTY MANAGER COULD BE LIABLE FOR INJURY CAUSED BY FURNITURE BLOWN OFF A 12TH STORY TERRACE BY WIND (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the plaintiff’s actions against the property manager and tenants should not have been dismissed. Plaintiff alleged she was injured by a heavy wooden lounge chair that was blown off a 12th story apartment terrace:

In this personal injury action, plaintiff seeks damages for injuries that she allegedly sustained when a heavy wooden lounge chair struck her after it was blown off the terrace of a 12th floor apartment in Manhattan. The building was owned by 15 Union Square West and managed by BHS; the apartment itself was owned by GR Realty and was rented to the tenant defendants.

Supreme Court should not have dismissed the complaint as against the tenant defendants and BHS. There are issues of fact as to whether the tenant defendants, who owe a common-law duty of reasonable care to maintain the premises in a reasonably safe condition independent of any obligation that might be imposed by their lease, had constructive notice of the potentially hazardous condition created by the unsecured lounge chair … . Although the lease stated that tenant defendants were not permitted to change the location of any furniture in the apartment, there were occasions when GR Realty granted tenant requests to move furniture. The record also presents evidence that the tenant defendants used the terrace during their occupancy, and issues of fact exist as to whether the risk posed by this furniture was visible and apparent during this period.

Similarly, there are issues of fact as to whether BHS, which managed the property, had constructive notice of the potentially hazardous condition and exercised control over the use of the terraces yet failed to take sufficient precautions in order to prevent or remedy a hazardous condition … . There is evidence in the record that BHS had previously been involved in notifying owners of potential hazards posed by windy conditions, and in fact had helped owners to secure furniture or bring it inside during bad weather…. . Sen v GR Realty Holdings LLC, 2026 NY Slip Op 02947, First Dept 5-12-26

Practice Point: Consult this decision for insight into the various theories of liability triggered by injury caused by furniture which was blown off a 12th story apartment terrace.​

 

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DEFENDANTS DESTROYED SPEADSHEETS WHICH MAY HAVE DEMONSTRATED PLAINTIFF’S TERMINATION WAS NOT MOTIVATED BY THE NEED TO CUT COSTS; PLANTIFF IN THIS EMPLOYMENT DISCRIMINATION ACTION WAS ENTITLED TO AN ADVERSE INFERENCE JURY CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants in this employment discrimination action should have been sanctioned for spoliation of evidence. The defendants destroyed retail store spreadsheets which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs. Plaintiff alleged he was terminated because he aided Egyptian employees who complained on national origin or religious discrimination. The First Department held plaintiff was entitled to an adverse inference jury charge:

… [T]he court erred in denying spoliation sanctions. Defendants breached their duty to preserve evidence by destroying retail store spreadsheets which were the only contemporaneous data on profits, payroll, and performance after litigation was reasonably anticipated … . Plaintiff’s October 2017 warning against tampering with accounting and payroll records triggered a preservation obligation that required defendants to suspend routine destruction policies … . Defendants cannot claim the records were deleted in the ordinary course of business, as a routine retention policy is no defense once the duty to preserve attaches … . Further, sanctions are warranted where a party’s negligence or intent deprives an opponent of the means of proving their claim … . Here, the destroyed spreadsheets are central to the issue of pretext. While defendants claim cost-based downsizing as the reason for termination, the destroyed data was the only evidence available to test whether the stores were actually underperforming or if plaintiff’s termination was retaliatory. Because this unique, irrecoverable evidence was within defendants’ exclusive control, its destruction is highly prejudicial. Accordingly, plaintiff should be granted an adverse inference charge at the time of trial. Pescales v Pax Ventures LLC, 2026 NY Slip Op 02942, First Dept 5-12-26

Practice Point: Defendants in this employment discrimination action were sanctioned for destroying financial records which could have demonstrated plaintiff’s termination was not motivated by the need to cut costs.

 

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ALTHOUGH DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT PLEAD THE EMERGENCY DOCTRINE AS AN AFFIRMATIVE DEFENSE, THE DEFENSE WAS PROPERLY RAISED IN OPPOSITION TO PLAINTIFFS’ SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant raised a question of fact in this rear-end collision case. Although defendant had not pleaded the emergency doctrine as an affirmative defense, the doctrine was properly raised in opposition to plaintiffs’ summary judgment motion. Defendant was travelling behind a box car on the interstate when the box car suddenly moved into the right lane to avoid plaintiff’s vehicle which was stopped or disabled. Defendant alleged she was unable to stop or change lanes before striking plaintiffs’ vehicle

… Jakubcin [defendant] raised a triable issue of fact by offering a nonnegligent explanation for the collision … . Jakubcin testified that she was travelling southbound in the center lane on Interstate 95 and that she was following a box car for about 10 miles at 60 miles per hour, when the box car suddenly moved into the right lane after signaling, at which time Jakubcin first observed plaintiffs’ car. Jakubcin testified that plaintiffs’ car was slow moving or became disabled and abruptly stopped in the center lane, only “seconds” in travel time ahead of Jakubcin’s car. The box car had obstructed Jakubcin’s view of the center lane conditions. Jakubcin quickly discerned she could not safely move into either the left or right lanes of the highway due to cars travelling in those lanes near her vehicle. Thus, Jakubcin’s testimony “raises a triable issue as to whether [s]he was entitled to expect that traffic would continue unimpeded” … . Further, there was evidence that plaintiffs’ car was not working and had no lights or emergency lights activated … . While Jakubcin did not plead the emergency doctrine as an affirmative defense, she was not precluded “from raising the issue in response to [plaintiffs’] summary judgment motions” … .  Pearson v Jakubcin, 2026 NY Slip Op 02930, First Dept 5-12-26

Practice Point: Here in this rear-end collision case, defendant successfully raised the emergency doctrine in opposition to summary judgement, despite not pleading the doctrine as an affirmative defense.

 

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NEW YORK’S “TOLLING” PROVISION FOR PREDICATE FELONIES REQUIRES ONLY A MATHEMATICAL CALCULATION TO DETERMINE HOW LONG THE TEN-YEAR LOOK-BACK IS EXTENDED BY PERIODS OF A DEFENDANT’S INCARCERATION; THEREFORE THERE IS NO NEED FOR A JURY TO MAKE FACTUAL FINDINGS BEFORE THE LOOK-BACK CALCULATION CAN BE MADE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined that New York “tolling provision,” which extends the ten-year look-back for predicate felonies by the amount of time defendant was incarcerated, is a purely mathematical calculation that does not require consideration by a jury:

…New York’s tolling provision requires a determination of whether the defendant was incarcerated and, if so, the dates of incarceration (see Penal Law §§ 70.06[1][b][iv],[v]; 70.08[1][b]). Thus, the tolling provision requires “rote arithmetic calculation to be made based on certified public records” … . The determination is completely objective. There is no assessment of defendant’s conduct or culpability. Rather, it is a determination of the amount of time a defendant was incarcerated between a previous conviction and the instant offense. There need only be a review of the official records of incarceration—i.e., when the defendant was admitted into the facility, when the defendant was released and any time in between. People v Young, 2026 NY Slip Op 02883, First Dept 5-7-26

Practice Point: Consult this opinion for insight into the nature and application of New York’s predicate-felony “tolling” provision.

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON WHETHER MOTHER’S ADDRESS SHOULD BE KEPT CONFIDENTIAL; FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO THE THERAPIST TO DETERMINE FATHER’S LEVEL OF PARTICIPATION IN THE CHILD’S THERAPY (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the court should have held a hearing on whether mother’s address could be kept confidential; and the court should not have delegated its authority to all the therapist to decide the extent father’s participation in the child’s therapy:

Section 154-b(2)(a) of the Family Court Act authorizes the court, on its own motion or upon the motion of any party or the child’s attorney, to permit the party or the child to keep his or her address confidential from an adverse party if the court finds that disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child. Thus, the statute requires a fact-specific determination as to the possible effects of such disclosure. Although the mother sought an address confidentiality order and Family Court acknowledged the need for a separate hearing, ultimately holding the issue in abeyance, the record is devoid of any determination as to whether disclosure of the address would pose an unreasonable risk to the child. In the absence of such a finding, the directive requiring disclosure cannot be said to reflect a proper exercise of discretion.

Family Court further erred in authorizing the father to communicate with the child’s therapist and to participate in therapy at the therapist’s discretion. This provision effectively delegates to the treating therapist the authority to determine whether, when, and under what circumstances the father may have contact with the child, which is an issue reserved to the court … . The directive also contradicts the court’s finding that contact with the father would harm the child’s mental health, and risks inhibiting the child’s openness with the child’s therapist if the child knows disclosures could be shared with or occur in the father’s presence. Thus, the order undermines the therapeutic process and risks exacerbating, rather than alleviating, the child’s emotional distress. Matter of Monet O. v Leroy L.B., 2026 NY Slip Op 02788, First Dept 5-5-26

Practice Point: Before determining whether a party’s address should be kept confidential, Family Court should hold a hearing.

Practice Point: The Family Court should not delegate its authority to determine the level of father’s participation in the child’s therapy to the therapist.

 

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THE INSTRUCTIONS CONCERNING THE USE OF CELL PHONES DURING A POLICE-DEPARTMENT PROMOTIONAL EXAM WERE AMBIGUOUS; THEREFORE THE DETERMINATION PETITIONERS VIOLATED THE INSTRUCTIONS WAS IRRATIONAL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the New York City Department of Citywide Administrative Services (DCAS), acted irrationally when it found that petitioners-police-officers had violated the prohibition of the use of cell phones before dismissal from a promotional examination. The petitioners did not use their cell phones during the exam. Rather the cell phones were used after completion of the exam but before dismissal from the exam room. The First Department held that the instructions concerning the use of cell phones were ambiguous:

Here, rationality is lacking, not for a want of evidence, but because the standard to which DCAS held petitioners was ambiguous. The notices of violations issued by DCAS specified, among other things, that petitioners breached a test-taking rule providing that, “[b]efore, during and after your test, you are not permitted to use, have turned on or have out in the open: cellular phones.” The rule does not indicate when the cell-phone prohibition begins or when it ends….  Nothing in the rule, which DCAS quoted from the instruction sheet provided to the candidates, suggests the location or locations to which the cell phone prohibition applied. The ambiguity of the rule, coupled with the ambiguity as to when the test concluded (which the executive deputy commissioner acknowledged) and the prevalence of cell phones in the exam room, make the determinations irrational. Matter of Bifulco v City of New York, 2026 NY Slip Op 02772, First Dept 5-5-26

Practice Point: An administrative punishment for a purported rule violation will be deemed irrational if the rule is ambiguous.

 

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IN THIS BREACH OF CONTRACT ACTION BROUGHT BY PLAINTIFF DONALD J TRUMP AGAINST MARY L TRUMP, DEFENDANT WAS ENTITLED TO DISCOVERY RELEVANT TO HER AFFIRMATIVE DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s discovery requests were relevant to her “fraudulent inducement” affirmative defense and should have been granted:

Plaintiff commenced this action against defendant for breach of the confidentiality provisions of a 2001 settlement agreement. In her answer, defendant asserted the affirmative defense of fraudulent inducement. Specifically, she alleged that she relied upon the valuation of certain assets set forth in the parties’ 2001 settlement agreement, and that those valuations were false. Defendant’s motion to compel seeks discovery of materials related to the valuations provided in the settlement agreement. Plaintiff bears the burden of establishing that the discovery sought by defendant, which relates to an affirmative defense of fraudulent inducement that plaintiff has not otherwise challenged in this action, is improper … .

Supreme Court improvidently exercised its discretion in denying defendant’s motion. CPLR 3101(a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action,” and is to be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening issues and reducing delay and prolixity” … . These principles entitle defendant to the requested discovery material to establish her affirmative defense … . Trump v Trump, 2026 NY Slip Op 02735, First Dept 4-30-26

Practice Point: Here in this breach of contract action, defendant was entitled to discovery relevant to her “fraudulent inducement” affirmative defense.

 

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PLAINTIFF DID NOT PROVE THE RPAPL 1304 NOTICE OF FORECLOSURE WAS PROPERTY MAILED TO DEFENDANT; THE MAILING WAS DONE BY A THIRD PARTY AND NO FIRST-HAND KNOWLEDGE OF THE THIRD-PARTY’S MAILING PROCEDURE WAS PRESENTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate the RPAPL 1304 notice of foreclosure was properly mailed to defendant. The mailing was done by a third-party and no first-hand evidence of that party’s mailing procedure was presented:

… [T]he affiant did not attest that she was familiar with the standard office mailing procedures of Covius Services, LLC, the third-party vendor that sent the RPAPL 1303 and 1304 notices on behalf of plaintiff. The affidavit therefore did not establish proof of a standard office mailing procedure designed to ensure that items were properly addressed and mailed … . The affidavit also did not address the nature of plaintiff’s relationship with Covius, nor did it address whether Covius’s records were incorporated into plaintiff’s own records or routinely relied upon in plaintiff’s business … . Thus, under the circumstances presented, the tracking numbers on the copies of the 90-day notices did not by themselves suffice to establish proper mailing under RPAPL 1304 … . Wells Fargo Bank, N.A. v Merino, 2026 NY Slip Op 02616, First Dept 4-28-26

Practice Point: If the mailing of the RPAPL 1304 notice of foreclosure is done by a third-party, first-hand knowledge of that party’s mailing procedure must be presented.​

 

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AFTER THE JUDGMENT OF FORECLOSURE AND THE EXPIRATION OF THE TIME FOR APPEAL, DEFENDANT, PRIOR TO THE SALE OF THE PROPERTY, PURSUANT TO CPLR 2221, MOVED TO VACATE THE JUDGMENT BASED ON THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE MOTION SHOULD NOT HAVE BEEN DENIED AS UNTIMELY; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant in this foreclosure action used the proper procedure for attempting to apply the Foreclosure Abuse Prevention Act (FAPA) retroactively. The foreclosure action had already proceeded to judgment and the time for appeal had expired. The only way to effectuate the FAPA at that point is a motion to renew (CPLR 2221) made before the sale of the property. Defendant’s CPLR 2221 motion should not have been denied as untimely:

The court granted plaintiff a judgment of foreclosure and sale … . Defendant moved pursuant to CPLR 2221 to vacate the judgment based on FAPA.

The court should not have determined that the motion was untimely. Generally, a CPLR 2221 motion based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has fully expired … . However, following the Court of Appeals’ decision in Article 13 LLC v Ponce De Leon Fed. Bank ( —NY3d—, 2025 NY Slip Op 06536 [2025]), this Court held that “the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted” … . Defendant followed this precise process.

Accordingly, this matter is remanded for further proceedings, including consideration of the parties’ arguments concerning whether retroactive application of FAPA would violate the Takings and Due Process Clauses … . Bank of N.Y. Mellon v Adam P10tch, LLC, 2026 NY Slip Op 02596, First Dept 4-28-26

Practice Point: After the judgment of foreclosure and the expiration of the time for appeal, but before the sale of the property, a defendant can still make a motion to vacate the judgment based on the FAPA (CPLR 2221).

 

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MOTHER, WHO NOW RESIDES IN NEW YORK, MOVED TO MODIFY A TEXAS CUSTODY ORDER; BECAUSE TEXAS DID NOT CEDE JURISDICTION AND FATHER RESIDES IN TEXAS, FAMILY COURT DID NOT HAVE JURISDICTION; ALTHOUGH FAMILY COURT COULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND COMMUNICATED WITH THE TEXAS COURT, IT DID NOT (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined the judge did not have jurisdiction to grant mother’s petition to modify custody. The original custody order was issued in Texas, where father resides. Mother and child, with the permission of the Texas court, now reside in New York:

This case presents the difficult situation faced by a judge addressing a petition by a party who seeks to modify a custody order issued by a court of another state. Under the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] (Domestic Relations Law Art. 5-A, §§ 75 — 78-a), even where New York has become the child’s “[h]ome state” (Domestic Relations Law §75-a[7]), a New York judge does not have jurisdiction to modify a custody order issued by a foreign state unless either: 1) the foreign state cedes jurisdiction; or 2) neither the parents nor the child continue to reside in the foreign state (Domestic Relations Law § 76-b). Since neither of these situations was present in this case, Family Court had no jurisdiction to modify the custody order before it. Alternatively, if the New York judge determines that it is necessary to protect a child, sibling or parent, the court may take temporary emergency jurisdiction, communicate with the foreign court, and issue a time-limited order as necessary to protect the child and t0 permit the party seeking a modification to request it in the foreign court (Domestic Relations Law § 76-c). Here, since Family Court failed to communicate with the foreign court and failed to specify a time-limited duration for its order, it also did not appropriately take emergency jurisdiction. * * *

… [H]ad Family Court recognized that Texas had exclusive, continuing jurisdiction over its custody order that the mother sought to modify, it could have contacted the Texas court in order to determine whether the Texas court would relinquish jurisdiction, thus permitting Family Court to exercise jurisdiction to modify the Texas custody order pursuant to Domestic Relations Law § 76-b. If the Texas court did not agree to relinquish jurisdiction, Family Court could then determine whether it should take emergency jurisdiction and issue a time-limited order pursuant to Domestic Relations Law § 76-c. Matter of Natalie P. v Steven L.R., 2026 NY Slip Op 02458, First Dept 4-23-26

Practice Point: A New York court does not have jurisdiction to modify an out-of-state custody order unless the foreign state cedes jurisdiction or no party continues to reside in the foreign state.

 

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