You are here: / First Department

Tag Archive for: First Department

, , ,

THE ALLEGATIONS OF DEFENDANTS’ CONDUCT DURING PHOTO SHOOTS OF PLAINTIFF-MODEL WHEN SHE WAS 16 AND 17 YEARS OLD MET THE “SEXUAL CONDUCT” CRITERIA FOR THE EXTENDED STATUTE OF LIMITATIONS UNDER THE CHILD VICTIMS ACT (CVA), THE COMPLAINT STATED CAUSES OF ACTION FOR INVASION OF PRIVACY PURSUANT TO CIVIL RIGHTS LAW SECTION 50 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, modifying Supreme Court in this Child Victims Act (CVA) action, determined: (1) the conduct alleged to have been committed by defendant modeling agency (Wilhelmina) and defendant-seller of sun tan products (Cal Tan) during photo shoots of plaintiff-model when she was 16 and 17 years old met the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the CVA (CPLR  214-g); (2) New York has jurisdiction over the case against Cal Tan, even though the Cal Tan photo shoot took place in Mexico (plaintiff was a New York resident); (3) the negligent supervision and breach of fiduciary causes of action against Cal Tan were properly dismissed because no allegations supported a duty to supervise; (4) the negligent supervision and breach of fiduciary duty causes of action against Wilhelmina should not have been dismissed because no arguments in opposition were interposed; and (5) the invasion of privacy causes of action (Civil Rights Law section 50) against both defendants survived the motions to dismiss. The following allegations were deemed sufficient to meet the “sexual conduct” criteria for the applicability of the CVA’s extended statute of limitations:

Plaintiff’s allegations as to Cal Tan include that she was “instructed . . . to arch her back and look at the camera ‘sexy,’ ‘like a lover,’ and think about doing ‘naughty things with your boyfriend,'” and that the photographs generated from the photoshoot “included ones in which Doe was depicted topless with her back arched in a sexually suggestive pose; looking out to the sea in a sultry manner; in which she was completely topless and ‘naked in the water’; where she is posed suggesting a willingness to engage in sexual activity; and where Doe is standing on a roof, semi- or totally naked.”

As to Wilhelmina, plaintiff alleged that at one photoshoot, “[s]he was photographed in [see-through lingerie] with another girl, also wearing see-through lingerie, together in bed. Doe and the other underage model wore coy expressions, as if together they had been doing something naughty, or sexual;” at another photoshoot, where plaintiff was unclothed, she was “instructed . . . to look ‘innocent, but sexy’ for some photos, and like a ‘bad girl’ for others”; and that at a third photoshoot she “was made to sit nude on a bed with a white sheet covering part, but not all, of her breast and buttocks.” Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 00969, First Dept 2-27-24\

Practice Point: This comprehensive opinion lays out the criteria for “sexual conduct” within the meaning of the extended statute of limitations under the Child Victims Act (CVA). Here allegations of defendants’ conduct during  photo shoots of plaintiff-model when she was 16 and 17 years old met the CVA sexual-conduct criteria.

 

,

THE PURPORTED ORAL ASSIGNMENT OF A SUBLEASE FOR MORE THAN A YEAR VIOLATED THE STATUTE OF FRAUDS; THE CRITERIA FOR AN ASSIGNMENT “BY OPERATION OF LAW” WERE NOT MET (FIRST DEPARTMENT). ​

The First Department, reversing (modifying) Supreme Court, determined the oral assignment of a sublease was invalid under the statute of frauds and there was no assignment “by operation of law:”

An oral assignment of the sublease here would have to satisfy the statute of frauds, which requires the assignment of such a sublease (for more than one year) to be in writing (see General Obligations Law § 5-703[2] …). Although, in the absence of a written assignment, a presumption of “assignment by operation of law” sufficient to satisfy the statute of frauds may be created by a “tenant in possession” paying rent … , such as where a tenant pays the full rent for some extended period of time … , no such presumption applies in the circumstances here. The terms of the sublease allowed for a sublease/occupation but expressly forbade oral assignments and included a “no waiver” clause, and the occupancy and payments by [defendant]  here was not conduct “unequivocally referrable” to any purported agreement by the parties to orally modify the no oral assignment term … . Innerworkings, Inc. v Arik Eshel CPA & Assoc. P.C., 2024 NY Slip Op 00972, First Dept 2-27-24

Practice Point: An oral assignment of a sublease for more than a year violates the statute of frauds.

Practice Point: Payment of rent for an extended period of time may satisfy the statute of frauds “by operation of law” (not the case here).

 

PLAINTIFF BOOK-PRINTER REPUDIATED ITS BOOK-PRINTING CONTRACT WITH DEFENDANT WHEN IT SOLD ITS PRINTING OPERATION TO A THIRD PARTY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Oing, determined plaintiff (EPAC) had repudiated its book-printing contract with defendant (Wiley) when it sold its printing operation to non-party LS-1. Therefore Wiley was entitled to summary judgment on EPAC’s breach of contract action:

“A repudiation can be either ‘a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach’ or ‘a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach'” … . Put another way, “a party repudiates a contract ‘where that party, before the time of performance arrives, puts it out of his power to keep his contract'” … . “Besides giving the nonrepudiating party an immediate right to sue for damages for total breach, a repudiation discharges the nonrepudiating party’s obligations to render performance in the future” … . Thus, if there were a repudiation, the rest of the case falls away, and Wiley would be entitled to summary judgment dismissing the complaint. EPAC Tech., Inc. v John Wiley & Sons, Inc., 2024 NY Slip Op 00933, First Dept 2-20-24

Practice Point: Here the requirements for “repudiation” of a contract are described in some detail.

 

THE FACT THAT PLAINTIFF SLIPPED AND FELL DOWN A PERMANENT CONCRETE STAIRWAY DID NOT REMOVE THE INCIDENT FROM THE REACH OF LABOR LAW 240(1); PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was ordered to carry a 200 pound mold up a concrete stairway. He slipped on concrete debris and fell down the stairs. The fact that the concrete stairway was a permanent structure (as opposed to a scaffold or ladder, for example) did not remove it from the reach of Labor Law 240(1):

Contrary to defendants’ contention, the fact that the staircase on which plaintiff fell was constructed as a permanent structure does not remove it from the reach of Labor Law § 240(1) .. . Because plaintiff’s foreman instructed him to work on an elevated work platform—namely, the stairway—defendants were required to provide plaintiff with an adequate safety device to carry the staircase mold up the stairs. Defendants failed to do so, and the absence of a safety device was a proximate cause of plaintiff’s injuries. At the time of his fall, plaintiff was following his foreman’s instructions to manually carry the mold up the stairs, and thus, he was not the sole proximate cause of the accident … . DaSilva v Toll GC LLC, 2024 NY Slip Op 00862, First Dept 2-20-24

Practice Point: Labor Law 240(1) can apply to a fall from a permanent concrete stairway. The statute does not apply exclusively to temporary structures like scaffolds, for example.

 

, , , ,

ALTHOUGH THE SPECIFIC CONTRACT WAS NOT IDENTIFIED IN THE COMPLAINT, THE NATURE OF THE BREACH OF CONTRACT CLAIM WAS SUFFICIENTLY ALLEGED BY REFERENCE TO THE NYC ADMINISTRATIVE CODE AND NYC DEPARTMENT OF TRANSPORTATION PERMITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract cause of action was sufficiently alleged. Although the complaint did not specifically identify the breached contract, the reference to the relevant provisions of the NYC Administrative Code and the NYC Department of Transportation (DOT) permits gave sufficient notice of the nature of the claim:

… [P]laintiffs alleged that Con Edison failed to ensure payment of prevailing wages by codefendant … as required by the permits issued by the City Department of Transportation (DOT), in that it breached agreements required to be made, pursuant to Administrative Code of City of NY § 19-142, prior to obtaining such permits. Administrative Code § 19-142 required Con Edison “to agree that . . . the prevailing scale of union wages shall be the prevailing wage for similar titles as established by the fiscal officer pursuant to section [220] of the labor law, paid to those so employed,” and provides that “[n]o permit shall be issued until such agreement shall have been entered into with the” DOT. As required by the Administrative Code, the DOT permits issued to Con Edison stated that the permittee was required, “before such permit may be issued, to agree . . . that the prevailing scale of union wages shall be the prevailing wage for similar titles” established pursuant to Labor Law § 220 … …

… [T]he fact that the breach of contract cause of action in the complaint does not specifically identify the relevant contract but instead refers to “the promises required to be made pursuant to New York City Administrative Code § 19-142 prior to obtaining such permits,” does not require dismissal. Despite the non-specificity, the complaint “give[s] sufficient notice of the nature of the claim” by referencing Administrative Code § 19-142 and the DOT permits … . Ross v No Parking Today, Inc., 2024 NY Slip Op 00880, First Dept 2-20-24

Practice Point: Here the failure to identify the specific contract which was breached did not require dismissal of the breach of contract cause of action because the nature of the action was sufficiently alleged by reference to the applicable NYC Administrative Code provision and NYC Department of Transportation permits.

 

, , , ,

A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined a retrocessional insurer (the reinsurer of a reinsurer) can maintain a legal malpractice claim against lawyers representing the insured in an underlying Labor Law 240(1) (ladder-fall) personal injury action. Plaintiff retrocessional insurer, having paid out on a settlement on behalf of the insured has standing to assert a claim for legal malpractice under a theory of equitable subrogation. (The opinion is too complex to fairly summarize here):

In New York, “[w]e recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages and the principle of subrogation ought to be liberally applied for the protection of those who are its natural beneficiaries” … . “As an equitable doctrine in the context of insurance, an insurance carrier, upon payment of a loss becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation” … . Under the same equitable principles, “an insurer which has been compelled under its policy to pay a loss, ought in fairness to be reimbursed by the party which caused the loss” … . * * *

Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of the [property owner/general contractor’s] settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee [of the property owner/general contractor], plaintiff can proceed with this action under the theory of equitable subrogation. Century Prop. & Cas. Ins. Corp. v McManus & Richter, 2024 NY Slip Op 00799, First Dept 2-15-24

Practice Point: Here the retrocessional insurer paid out a settlement on behalf of the insured in an underlying personal injury action. The retrocessional insurer was entitled to bring a legal malpractice action against the lawyers for the insured.

 

, , ,

FOR PURPOSES OF THE RELATION-BACK DOCTRINE, A LANDLORD AND A TENANT ARE NOT “UNITED IN INTEREST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord-tenant relationship between the insured and the defendant building owner, Marion, did not constitute a “unity of interest” such that a negligence action against Marion could be commenced after the statute of limitations had run:

There are three conditions that must be satisfied for a claim asserted against a subsequent defendant such as Marion to relate back to claims asserted against another defendant: (1) both claims must arise out of the same conduct, occurrence, or transaction; (2) the new party must be “united in interest” with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the lawsuit such that he will not be prejudiced in maintaining his defense on the merits; and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well … . * * *

… [A] landlord-tenant relationship, standing alone, does not give rise to vicarious liability or otherwise create unity of interest, which, as the Court of Appeals has recently reaffirmed, requires a situation in which the parties “stand or fall together and the judgment against one will similarly affect the other” … . Kingstone Ins. Co. v Marion Pharm. Inc., 2024 NY Slip Op 00805, First Dept 2-15-24

Practice Point: A landlord and a tenant are not united in interest for purposes of the relation-back doctrine and will not support adding a landlord to a complaint after the statute of limitations has run.

 

, ,

THE ATTEMPT TO CORRECT A SENTENCING MISTAKE IN THE DEFENDANT’S ABSENCE VIOLATED DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHT TO BE PRESENT (FIRST DEPT). ​

The First Department, vacating defendant’s sentence, determined the attempt to correct a mistake in the term of postrelease supervision in defendant’s absence violated defendant’s constitutional and statutory rights:

As the People concede, defendant’s constitutional and statutory rights to be present at sentencing were violated when the court resentenced defendant in his absence to correct a mistake in the term of postrelease supervision imposed (see CPL 380.40[1] …). Accordingly, the sentence is vacated and the matter is remanded for resentencing with defendant present. On remand, the court shall also address the discrepancy between the five-year term of postrelease supervision imposed on the weapon possession count at the original sentencing and the three-year term of postrelease supervision count reflected in the amended sentence and commitment sheet … . People v McCallum, 2024 NY Slip Op 00816, First Dept 2-15-24

Practice Point: Here the attempt to correct a mistake in the period of postrelease supervision in the defendant’s absence required vacation of the sentence.

 

, ,

THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).

The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of Health required nursing homes to admit COVID-positive patients:

As to the application of the EDTPA, defendant was entitled to immunity under that statute. The documents submitted with defendant’s motion to dismiss, including several pandemic-related policies, State Department of Health directives, and more than 1600 of pages of the decedent’s medical records, demonstrate that defendant was providing health care services to the decedent under the COVID-19 emergency orders when he was infected and, before that, “in accordance with applicable law”; the care provided was “impacted by” defendant’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and the decedent was provided care “in good faith” … . Hasan v Terrace Acquisitions II, LLC, 2024 NY Slip Op 00739, First Dept 2-13-24

Practice Point: This decision includes an extensive discussion of when a statute can be deemed to apply retroactively.

 

, ,

THE SEARCH OF A CAR AFTER DEFENDANT HAS BEEN REMOVED FROM THE CAR CANNOT BE CONSIDERED A SEARCH INCIDENT TO ARREST; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling:

The court improperly denied defendant’s motion to suppress the PCP recovered from the vehicle. As the People concede, the search of the vehicle could not be justified as a search incident to arrest because, at the time of the search, defendant and the driver had already been removed from the car and were in handcuffs. Anything inside of the car was no longer in defendant’s grabbable area or immediate control, and the People failed to demonstrate the existence of exigent circumstances to justify the search … . People v Ortiz, 2024 NY Slip Op 00745, First Dept 2-13-24

Practice Point: Once a defendant has been removed from a car, a search of the car cannot be a search incident to arrest because the interior of the car is no longer in defendant’s grabbable area or immediate control.

 

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