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ALTHOUGH PLAINTIFF IS A NEW JERSEY RESIDENT WORKING FOR A NONDOMICILIARY EMPLOYER, SHE WAS REQUIRED TO MAKE REGULAR VISITS TO HER EMPLOYER’S CLIENT IN NEW YORK CITY; PLAINTIFF ALLEGED SHE WAS SEXUALLY HARASSED, IN NEW YORK CITY, BY THE CLIENT’S EMPLOYEE; BECAUSE THE ALLEGED DISCRIMINATORY CONDUCT “HAD AN IMPACT IN NEW YORK,” NEW YORK HAD SUBJECT MATTER JURISDICTION FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, reversing Supreme Court, determined New York had jurisdiction over this employment discrimination action brought under the NYS Human Rights Law and the NYC Human Rights Law. The plaintiff is a New Jersey resident and Ethicon, alleged to be her employer, is a New Jersey corporation. Plaintiff alleged she was assigned to a sales account for Mount Sinai Health System, Inc. which required her to meet regularly with an manager at Mount Sinai in New York City. Plaintiff alleged Ethicon knew that she would be subject to sexual harassment by the Mount Sinai manager. The First Department held that the term “employer” in the Human Rights Law included the nondomiciliary Ethicon because the discriminatory conduct at issue “had an impact in New York.” ​

​… [T]he issue here is how we should interpret the State HRL’s definition of an “employer” as used in the phrase “all employers within the state” for purposes of liability under the State HRL (Executive Law § 292 [5]). The motion court read this definition as requiring an employer to have a physical presence in New York and therefore found both the State HRL and the City HRL inapplicable to Ethicon, “a New Jersey employer of [plaintiff,] a New Jersey resident.”  * * *

… [T]he Court of Appeals in Hoffman v Parade Publs. (15 NY3d 285 [2010]), adopted an impact test for nonresidents who seek the protection of the City HRL and found that test “relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the City HRL to those who are meant to be protected—those who work in the city” …. . * * *

Thus, the relevant inquiry is whether the alleged discriminatory conduct had an impact in New York regardless of the residency of the parties. Here, plaintiff, a New Jersey resident, alleges that Ethicon, her nondomiciliary employer, assigned her to service a New York-based account, requiring her regular presence at Mount Sinai’s hospital where the alleged traumatic sexual harassment occurred. Plaintiff further alleges that Ethicon was aware of the harassment and nevertheless required her to continue the assignment because of the account’s importance. At the pleading stage, plaintiff’s allegations, among other discriminatory acts, that her Ethicon manager discouraged her from complaining and “coached her to ‘lean into’ the sexual harassment so Mount Sinai would continue using Ethicon’s services” are more than sufficient to allege sexual discriminatory conduct having a concrete impact on plaintiff within New York to confer subject matter jurisdiction. Plaintiff’s residency outside New York does not preclude application of the State HRL or City HRL where the alleged misconduct occurred in New York City and affected plaintiff while she was working there. Arizzo v Ethicon, Inc., 2026 NY Slip Op 03262, First Dept 5-26-26

Practice Point: Consult this opinion for insight into subject matter jurisdiction under the NYC and NYS Human Rights Law. If a nonresident employee of a nondomiciliary corporation, as part of her job, meets regularly with a client in New York City and is sexually harassed by the client, New York has subject matter jurisdiction over Human Rights Law causes of action.​

 

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MOTHER STABBED HER TWO CHILDREN AND FILED AN INTENT TO PRESENT A PSYCHIATRIC DEFENSE IN THE CRIMINAL TRIAL; THE SURVIVING DAUGHTER AND FATHER SUED DEFENDANT HOSPITAL ALLEGING MOTHER WAS NEGLIGENTLY TREATED SHORTLY BEFORE THE STABBING; MOTHER WAIVED THE PHYSICIAN-PATIENT AND RELATED PRIVILEGES BY FILING THE NOTICE OF INTENT TO PRESENT A PSYCHIATRIC DEFENSE; PLAINTIFFS WERE ENTITLED TO DISCOVERY OF MOTHER’S MEDICAL RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined non-party mother had waived the physician-patient and related privileges by filing a Criminal Procedure Law (CPL) section 250.10 notice of intent to present a psychiatric defense in the prior criminal trial. Mother had stabbed her two children. The instant personal injury action is brought by the surviving child and her father alleging mother was negligently treated by defendant hospital shortly before the stabbing. The plaintiffs sought discovery of mother’s medical records:

Generally, medical records are protected from disclosure (see CPLR 4504 [physician-patient privilege]; 4507 [psychologist-patient privilege]; Mental Hygiene Law § 33.13[c] [privilege for patient information reported to the Office of Mental Health or the Office for People with Developmental Disabilities]). However, a patient can waive those privileges “either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue” … . However, simply denying the allegations in a complaint does not constitute such a waiver … . * * *

… [W]aiver of the physician-patient and related privileges in a criminal action generally carries over to a subsequent civil action, provided the defendant’s mental condition remains at issue … . * * *

We are of the view that … the filing of a CPL 250.10 notice of intent to present a psychiatric defense in the criminal case was sufficient to demonstrate that [mother]  placed her mental condition at issue so as to waive her privilege to confidentiality of her medical, psychiatric, and mental health records maintained by [defendant]. . S.M. v City of New York, 2026 NY Slip Op 03248, First Dept 5-21-26

Practice Point: Filing a notice of intent to present a psychiatric defense in a criminal trial waives the physician-patient and related privileges and the waiver carries over to a subsequent related civil action.

 

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PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THERE WAS A “SPECIAL RELATIONSHIP” BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKERS SUCH THAT PLAINTIFFS COULD REASONABLY RELY ON THE BROKERS TO RENEW A POLICY (FIRST DEPT).

The First Department determined the defendant insurance brokers may be liable in negligence with respect to an audit which led to plaintiffs’ coverage being dropped. Whether the brokers can be held liable depends on whether there was a “special relationship” between the brokers and the plaintiffs upon which plaintiffs could reasonably rely. The plaintiffs raised a question of fact on the existence of a special relationship:

Supreme Court properly denied summary judgment on plaintiffs’ negligence claim because there are issues of fact concerning whether the parties had a special relationship, exceeding that of a traditional broker-client relationship. Plaintiffs testified that, among other things, defendants advised plaintiffs regarding insurance issues, addressed plaintiffs’ audits, and handled insurance policy changes … . Although defendants’ principal testified that the insurance carrier did not contact defendants during the audit that eventually led to plaintiffs’ coverage being dropped, one of the individual plaintiffs testified that he had worked with defendants for more than a decade, used defendants for all six of his businesses, and that he would send everything in his possession relating to insurance to defendants, who would in turn take care of it, including when plaintiffs received audit requests from the insurance carrier. In such a situation where “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on,” a special relationship may arise thereby “creating an additional duty of advisement” even in the absence of a specific request from the insured to the broker … .

There are also issues of fact concerning which party was responsible for managing the renewal process as defendants’ involvement with previous audits may evince a course of conduct demonstrating that the renewals were in fact defendants’ responsibility … . The record evidence does not disprove as a matter of law that defendants’ inaction in renewing the policy did not proximately cause plaintiffs’ injuries … . S & M Bronx Inc. v Diversified Planning Brokerage LLC, 2026 NY Slip Op 03247, First Dept 5-21-26

Practice Point: Consult this decision for insight into the proof necessary to demonstrate a “special relationship” with insurance brokers such that the brokers can be held liable in negligence for failing to renew a client’s policy.

 

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A MISREPRESENTATION OF PRESENT FACT, UNLIKE A MISREPRESENTATION OF FUTURE INTENT TO PERFORM UNDER A CONTRACT, WILL SUPPORT A FRAUDULENT INDUCEMENT CAUSE OF ACTION WHICH IS NOT DUPLICATIVE OF THE RELATED BREACH OF CONTRACT CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fraudulent inducement cause of action should not have been dismissed as duplicative of the breach of contract cause of action. The fraudulent inducement claim was based on an assertion of present fact. i.e., that the judgment debtor had sufficient capital to close on the property:

We reject defendants’ argument that the fraudulent inducement cause of action is duplicative of the breach of contract cause of action. “[A] misrepresentation of present fact, unlike a misrepresentation of future intent to perform under the contract, is collateral to the contract, even though it may have induced the plaintiff to sign it, and therefore involves a separate breach of duty” … . The alleged representations … that the judgment debtor had sufficient capital to close on the property were representations of present fact, not future intent to perform.

Similarly, we reject defendants’ argument that plaintiff seeks identical damages under the fraudulent inducement cause of action and the breach of contract cause of action. Under the circumstances of this case, at this early procedural stage plaintiff is entitled to maintain the fraudulent inducement claim in the alternative to the breach of contract claim … . This conclusion is especially true because the remedy available to plaintiff for fraudulent inducement under the “out-of-pocket rule” is not lost profits but rather “the actual pecuniary loss sustained as the direct result of the wrong” … . CSN Realty Corp. v Moussaieff, 2026 NY Slip Op 03228, First Deptt 5-21-26

Practice Point: Here the misrepresentation that the judgment debtor had sufficient funds to close was a misrepresentation of present fact which supported a fraudulent inducement cause of action distinct from the breach of contract cause of action.​

 

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PURCHASING AND FORECLOSING ON MORTGAGES IN NEW YORK DOES NOT CONSTITUTE “DOING BUSINESS IN NEW YORK” WITHIN THE MEANING OF THE LIMITED LIABILITY COMPANY LAW; THE LLC CANNOT SUE IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff limited liability company (NS194) could not sue in New York because purchasing and foreclosing on mortgages in New York does not constitute doing business in New York under the Limited Liability Company Law:

Supreme Court erred in directing plaintiff to prove NS194’s compliance with Limited Liability Company Law § 802 … . Defendants failed to rebut the presumption that NS194 was not conducting business within the state and lacked capacity to sue pursuant to Limited Liability Company Law § 802. Plaintiff’s conduct of purchasing and foreclosing on mortgages in New York does not constitute doing business in this state (see Limited Liability Company Law § 803[a][1] [“maintaining or defending any action or proceeding” is not “doing business in this state”] …). … ([S]ee Star201, LLC v Martinez, AD3d , 2026 NY Slip Op 02144, *2 [2d Dept Apr. 8, 2026] [“the mere maintenance of an action [for foreclosure] by a foreign corporation does not constitute doing business within the State”] …). Wilmington Sav. Fund Socy. v Okoronkwo, 2026 NY Slip Op 03253, First Dept 5-21-26

Practice Point: An LLC which purchases and forecloses on mortgages in New York is not “doing business in New York” and therefore cannot sue in New York.​

 

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A SERIES OF REMARKS MADE BY HIS SERGEANT OVER A PERIOD OF YEARS RAISED QUESTIONS OF FACT ABOUT WHETHER THE REMARKS WERE MOTIVATED BY RACIAL ANIMUS; THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s racial discrimination complaint pursuant to the NYC Human Rights Law should not have been dismissed:

Plaintiff stated a cause of action for racial discrimination under the City HRL (see CPLR 3211[a][7]). … [Sergeant Martin] Toczek made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including plaintiff, criticizing racial justice protests in the National Football League by Colin Kaepernick and other NFL players. On one occasion, plaintiff, who is Black, stated to Toczek that the players had a constitutional right to protest, and Toczek replied, “yeah, . . .but it’s my right . . . if I want to like [B]lack people.” Toczek also shared articles about Black NFL players committing crimes and described them as “perps.”

… Toczek directed plaintiff to accompany two White detectives in apprehending an arrestee who “had a history of assaulting police officers who tried to arrest him.” The arrestee had previously assaulted Dan Fox, a white Auto Crimes Unit detective. Plaintiff was on restricted duty at the time because of a shoulder injury and could not carry a gun or a shield. Toczek told plaintiff not to worry because, “[w]hen he sees you, he’s not going to fight, look how big you are,” and further suggested that the arrestee would not assault plaintiff “because, look at [Fox], look at him and look at you.” Plaintiff is 6’7″ and weighs about 260 pounds. Plaintiff suffered a serious injury when the arrestee resisted arrest; he retired shortly afterward with accidental disability benefits for his line-of-duty injury. * * *

… [I]t is a jury issue as to whether Toczek’s other comments about the NFL reflected racial animus. A reasonable juror could conclude that, once Toczek signaled that his objection to the protests was at least in part about race, every other reference to the protests and the NFL became infused with racial animus. * * *

The complaint … sufficiently alleges that Toczek’s assignment of plaintiff to the potentially dangerous arrest was “motivated at least in part by” plaintiff’s race … . * * *

… [A] reasonable juror could interpret Toczek’s assertion that plaintiff’s appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the “classic and common racist trope that Black men are inherently threatening or dangerous” … . Taylor v City of New York, 2026 NY Slip Op 03128, First Dept 5-19-26

Practice Point: Consult this decision for insight into when remarks made over a period of years by a supervisor in the work place can raise a question of fact about whether the remarks were motivated by racial animus and constituted violations of the NYC Human Rights Law.

 

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IF A LADDER IS NOT SECURED AND IT MOVES, IRRESPECTIVE OF WHETHER IT MOVES BEFORE OR AFTER PLAINTIFF LOSES HIS BALANCE, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IS WARRANTED; PLAINTIFF’S PURPORTED STATEMENT IN AN UNCERTIFIED MEDICAL RECORD WHICH WAS NOT GERMANE TO TREATMENT WAS INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the fact that the ladder was not secured and moved warranted summary judgment on the Labor Law 240(1) cause of action, and (2) plaintiff’s purported remark which was included in an uncertified medical record and was not germane to treatment was inadmissible:

Plaintiff’s testimony that he fell because he lost his balance and the ladder on which he was standing shook established his prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Contrary to the motion court’s conclusion, “[i]t is irrelevant whether plaintiff initially lost his balance before or after the ladder [shook] because . . . the ladder failed to remain steady under plaintiff[ ] . . . as he performed his work” … . Nor is this “a case where an issue of fact is raised as to whether plaintiff simply lost his balance or footing while working on a properly secured ladder. Indeed, plaintiff’s fall was directly related to the work that he was performing, as opposed to his own misstep” … . “Defendants were obligated to ensure that the ladder was secured to something stable” … . “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240 (1)”  … . …

Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. The only evidence on which defendants relied was a recorded statement purportedly made by plaintiff after his accident that appears on a single page from his medical records. However, not only was the medical record uncertified and, therefore, inadmissible, but plaintiff’s description of the accident in that statement was not germane to his diagnosis or treatment … . Diaz v Boston Props., Inc., 2026 NY Slip Op 03114, First Dept 5-19-26

​Practice Point: Ladders which are not secured to something stable violate Labor Law 240(1).

 

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PLAINTIFF WAS INJURED WHEN A GRINDER WITH NO GUARD KICKED BACK; THE ALLEGATION PLAINTIFF WAS TOLD TO USE A SLEDGEHAMMER, NOT THE GRINDER, DID NOT RAISE A QUESTION OF FACT; A SLEDGEHAMMER IS NOT A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff was injured when a grinder with no guard kicked back. The allegation that plaintiff was told to use a sledgehammer, not the angle grinder, did not raise a question of fact:

Plaintiff established prima facie entitlement to summary judgment as to liability on his Labor Law § 241(6) claim insofar as that claim was predicated on a violation of Industrial Code § 23-1.5(c)(3), which mandates that equipment in use shall be kept sound and operable and that damaged equipment shall be immediately repaired, restored, or removed from the job site. …

… [E]ven if plaintiff was negligent by using the grinder instead of the sledgehammer, this at most constitutes comparative negligence, which is insufficient to defeat plaintiff’s motion … .

To the extent that [defendant] argues that plaintiff was recalcitrant in ignoring the alleged instructions to use a sledgehammer and to not use an angle grinder, this is insufficient to raise a triable issue of fact. … [E]ven if the defense were to apply to a Labor Law § 241(6) claim … it has no application where, as here, no adequate safety devices were provided because a sledgehammer is not a safety device.  Terron-Alcantara v Charlie’s Real Estate LLC, 2026 NY Slip Op 03091, First Dept 5-14-26

Practice Point: Comparative negligence does not defeat a Labor Law 240(1) cause of action.

Practice Point: Here, the allegation plaintiff was told to use a sledgehammer, not the unsafe grinder, did not raise a question of fact on the Labor Law 241(6) cause of action.

 

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THE JUDGE’S FAILURE TO MENTION THE POSTRELEASE SUPERVISION (PRS) COMPONENT OF THE SENTENCE RENDERS THE PLEA UNCONSTITUTIONAL; THE ISSUE NEED NOT BE PRESERVED (FIRST DEPT).

The First Department, vacating defendant’s plea, determined the judge never informed the defendant of the postrelease supervision (PRS) component of the sentence. The court noted that the issue may be raised for the first time on appeal. The issue need not be preserved by a motion to withdraw the plea or vacate the conviction:

The record does not establish that the court advised defendant when he pleaded guilty that the sentence would include a period of PRS. Consequently, the plea “cannot be deemed knowing, voluntary and intelligent” … , and it must be vacated.

Where a trial judge does not fulfill the obligation to advise a defendant of PRS during the plea allocution, “the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion” … . The prosecution’s reference to its offer of PRS at the plea proceeding does not change this conclusion where the court itself never mentioned PRS at the plea proceeding … . Similarly, defendant’s failure to move to withdraw the plea or vacate the judgment of conviction does not bar him from raising the issue at this time. People v Ndiaye, 2026 NY Slip Op 03080, First Dept 5-14-26

Practice Point: A guilty plea is not “knowing, voluntary and intelligent” if the judge fails to mention the postrelease supervision (PRS) component of the sentence.

 

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HERE THE “RENEWED” SUMMARY JUDGMENT MOTION WAS BASED ON EVIDENCE WHICH WAS AVAILABLE FOR THE FIRST MOTION; THE “RENEWED” MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s renewed motion for summary judgment should not have been granted; it was based on evidence which was available for the first motion:

… “[S]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification” … . In support of the renewed motion for summary judgment, plaintiff presented an affirmation from Joseph DeCiutiis, a senior vice president at a title insurance company who represented that his company had determined that a secretary certificate of authority for the sale of the subject real property was “insurable authorization for the sale.” While the DeCiutiis affirmation is dispositive of the issue of fact identified by this Court in Apple Bank I with respect to plaintiff’s entitlement to summary judgment, plaintiff offers no reason why it could not have obtained a similar affirmation in support of its first summary judgment motion. Such evidence “was clearly available to [plaintiff] earlier, and thus should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion” … .  Apple Bank for Sav. v Prime Rok Real Estate LLC., 2026 NY Slip Op 03057, First Dept 5-14-26

Practice Point: A “successive” summary judgment motion which is based on evidence which could have been included in the initial motion will be denied.

 

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