You are here: / First Department

Tag Archive for: First Department

,

THE COMPLAINT STATED CAUSES OF ACTION FOR UNDUE INFLUENCE, CONVERSION AND UNJUST ENRICHMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff stated causes of action for conversion, unjust enrichment and undue influence exercised by the defendant with regard to changing the beneficiary on a $6 million account:

… [T]he circumstances requiring scrutiny include the alleged facts that plaintiff was decedent’s closest living relative, that they had a continuing close relationship, and that he had been the designated beneficiary for 10 years, while defendant was a neighbor and relatively recent friend … . Moreover, plaintiff sufficiently alleges defendant’s financial motive (the $6 million-plus value of the account), opportunity (that his aunt and defendant were neighbors, and his aunt’s advanced age, fragile physical health, and inability to print the change of beneficiary form independently), and actual exercise of undue influence (the execution and mailing of the change of beneficiary form and the suspicious circumstances surrounding the writing of a $15,000 check to defendant weeks later) … . Furthermore, accepting the pleadings as true, the allegations that plaintiff’s aunt attempted to stop payment on the $15,000 check and that she complained to others that defendant had tricked her into writing the check, and changed her will to remove defendant as her executor, but did not change or revoke the beneficiary form, together support an inference that the aunt either was not aware of the form or was not aware of its effect. Salitsky v D’Attanasio, 2023 NY Slip Op 01597, First Dept 3-23-23

Practice Point: The allegation that plaintiff’s aunt changed the beneficiary on a $6 million account from plaintiff to defendant, coupled with the allegations of the aunt’s fragile health and advanced age, stated causes of action for undue influence, conversion and unjust enrichment.

 

, ,

IN THIS NO-FAULT INSURANCE CASE, THE INSURER REQUESTED AN EXAMINATION UNDER OATH (EUO) WITHOUT AFFORDING THE MEDICAL PROVIDER SPECIFIC, OBJECTIVE JUSTIFICATION FOR THE REQUEST; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE INSURER (FIRST DEPT).

​The First Department, reversing Supreme Court in this no-fault insurance case, determined the insurer did not provide the medical provider with objective justification for its request for an examination under oath (EUO). Summary judgment should not have been awarded to the insurer:

Although plaintiff timely requested an EUO and subsequently issued a timely denial … , the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO … . This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer … . Country-Wide Ins. Co. v Alicea, 2023 NY Slip Op 01474, First Dept 3-21-23

Practice Point: In a no-fault insurance matter, the insurer’s request for an examination under oath (EUO) must be supported by “specific objective justification.” Here the failure to afford the medical provider objective justification precluded summary judgment in favor of the insurer.

 

PLAINTIFF DID NOT ALLEGE SUFFICIENT CONTACTS WITH NEW YORK TO SUPPORT LONG-ARM JURISDICTION OVER THE DEFENDANT IN ISRAEL; THE EVIDENCE DID NOT JUSTIFY JURISDICTIONAL DISCOVERY (FIRST DEPT).

​The First Department, reversing Supreme Court, determined plaintiff did not demonstrate a basis for long-arm jurisdiction over the defendant in Israel, and did not make a “sufficient start” to justify jurisdictional discovery:

Plaintiff, a Rhode Island corporation with its principal place of business in Nevada, commenced this action against defendant, a resident of Israel, alleging that defendant breached his fiduciary duty to plaintiff by failing to perform his marketing and management duties while serving as plaintiff’s director. …

… [D]efendant submitted evidence to show that he had no contacts with New York, had not been in New York since mid-2018, and that the specific transactions alleged in the complaint involved business contacts in Texas and Rhode Island, not New York. In opposition, plaintiff did not dispute defendant’s showing, but submitted evidence that it leased an office and opened a bank account in New York with defendant’s approval and assistance, and an affidavit of its chief executive officer who made vague and unsubstantiated assertions that defendant did business on plaintiff’s behalf in New York at unspecified times with unnamed employees and customers, which was insufficient to establish long-arm jurisdiction … . Because plaintiff failed to make a “sufficient start, via tangible evidence,” of showing that defendant transacted any business in New York having any substantial relationship to the claim alleged in the complaint, jurisdictional discovery was not warranted, and the complaint should have been dismissed … . Noris Med., Inc. v Siev, 2023 NY Slip Op 01482, First Dept 3-21-23

Practice Point: The alleged connections with New York did not state a basis for long-arm jurisdiction over the defendant in Israel.

Practice Point: The evidence did not make a “sufficient start” such that jurisdictional discovery was warranted.

 

, , ,

THE COMPLAINT STATED A CAUSE OF ACTION FOR UNPAID OVERTIME WITHOUT SPECIFYING PARTICULAR DATES OR WEEKS; AFFIDAVITS ARE NOT DOCUMENTARY EVIDENCE WHICH WILL SUPPORT A “DOCUMENTARY EVIDENCE” MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for unpaid overtime wages pursuant to the Labor Law and the proof submitted by defendant did not support a motion to dismiss based on documentary evidence:

Plaintiffs’ complaint sufficiently states a claim for unpaid overtime wages in violation of Labor Law §§ 191 and 663 and 12 NYCRR 142-2.2 … . Plaintiffs allege that they were not compensated for hours spent before and after their shift, loading company vehicles and receiving job assignments, before traveling to construction sites throughout the New York City region … . Although the complaint does not contain the particular dates or weeks that plaintiffs were allegedly underpaid, it provides sufficient notice of their causes of action for unpaid wages and overtime based on pre-shift and post-shift work performed at defendant’s yard … .

In addition, defendant’s documentary evidence is insufficient to support a motion to dismiss under CPLR 3211(a)(1). Dismissal on the basis of documentary evidence is appropriate only if that evidence “utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Affidavits are not documentary evidence that can support a 3211(a)(1) motion … . The documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts began or after their shifts had purportedly ended. Rosario v Hallen Constr. Co., Inc., 2023 NY Slip Op 01490, First Dept 3-21-23

Practice Point: Here the complaint stated a cause of action for unpaid overtime despite the absence of specific dates or week when plaintiffs were allegedly underpaid.

Practice Point: A motion to dismiss based on documentary evidence is not supported when the documents are affidavits.

 

,

THE NEGLIGENCE CAUSE OF ACTION AGAINST PLAINTIFFS’ INSURANCE BROKERS SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE BROKERS FAILED TO PROCURE ADEQUATE COVERAGE AND FAILED TO INFORM PLAINTIFFS OF THE DEFINITIONS AND TERMS OF THE POLICY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the plaintiffs-insureds’ negligence cause of action against their insurance brokers should not have been dismissed:

Supreme Court improperly dismissed plaintiffs’ causes of action for negligence against Thompson Flanagan and WIA, the brokers. Plaintiffs sufficiently pleaded a cause of action for negligence against the brokers which was distinct and not duplicative of their breach of contract claim. “‘The law is reasonably settled . . . that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so'” … . Thus, “‘a party who has engaged a person to act as an insurance broker to procure adequate insurance is entitled to recover damages [for breach of contract] from the broker if the policy obtained does not cover a loss for which the broker contracted to provide insurance, and the insurance company refuses to cover the loss'” … .. Additionally, “[a]n insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction” and “[t]hus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract” … . Here, in addition to alleging both brokers breached a contract to procure adequate insurance coverage, plaintiffs also assert that they failed to inform them of the definitions and terms of the policy. The latter allegations implicate a duty and potential breach by the brokers independent from the contract … . Florence Capital Advisors, LLC v Thompson Flanagan & Co., LLC, 2023 NY Slip Op 01358, First Dept 3-16-23

Practice Point: Here the plaintiffs-insureds stated a cause of action sounding in negligence against their insurance brokers for failure to procure adequate insurance and failing to inform plaintiffs of the definitions and terms of the policy. The negligence allegations alleged a duty independent from the contract.

 

THE MENTAL HYGIENE LAW DOES NOT REQUIRE A TESTIMONIAL HEARING BEFORE THE REMOVAL OF A GUARDIAN FOR AN INCAPACITATED PERSON (FIRST DEPT).

The First Department noted that removal of a guardian does not require a testimonial hearing:

The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … . A motion on notice, served on the persons specified in Mental Hygiene Law § 81.16 (c), is required but there is no statutory right to a hearing … . This relaxed requirement stands in distinction to Mental Hygiene Law § 81.11 (a), which provides that the petition for the appointment of a guardian for an alleged IP [incapacitated person], whose liberty interests are at stake, “shall be made only after a hearing” … . The reason a guardian has “no due process right to a full hearing,” nor is a “full blown” hearing necessary for their removal, is that a guardian has no “property interest” to protect … . Matter of Edgar V.L., 2023 NY Slip Op 01360, First Dept 3-16-23

Practice Point: Although the Mental Hygiene Law requires a testimonial hearing before the appointment of a guardian for an incapacitated person, no hearing is required for the removal of a guardian.

 

,

PLAINTIFF ALLEGEDLY TRIPPED ON DEBRIS AND FELL INTO A TWO-TO-THREE-FOOT-DEEP PIT FROM WHICH THE PLYWOOD COVER HAD BEEN REMOVED TRIGGERING POTENTIAL LIABILITY UNDER LABOR LAW 240(1) AND 241(6); ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT OF THE OWNER WITH SUPERVISORY AUTHORITY; TWO DEFENDANTS MAY BE LIABLE UNDER LABOR LAW 200 FOR THE DANGEROUS CONDITIONS; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversed Supreme Court and reinstated the complaint in this Labor Law 240(1), 241(6) and 200 action. Plaintiff’s decedent allegedly tripped on debris and fell into a two-to-three-foot deep pit from which the plywood cover had been removed:

… [P]laintiff has raised an issue of fact as to whether application of Labor Law § 240 governs this claim sufficient to defeat defendants’ various motions for summary judgment … .

… [P]laintiff raised issues of fact barring dismissal of the Labor Law § 241(6) cause of action, as Industrial Code §§ 23-1.7(e) and 23-1.30 may apply to circumstances of plaintiff’s accident. Plaintiff’s decedent testified that he tripped over debris in a passageway and then into a pit in an area that was arguably a work area … .

As to Baring’s liability under the Labor Law, it failed to establish that it is not a statutory agent for purposes of Labor Law §§ 240(1) or 241(6). Baring’s contract with Plaza delegated the authority to Baring to supervise and control the installation of kitchen equipment and obligated it to exercise such supervision over any of its subcontractors, such as decedent’s employer. That it may not have actually done so is not dispositive … .

With respect to the Labor Law § 200 and common-law negligence causes of action as against NYY Steak and Plaza, there is an issue of fact as to whether those defendants were on notice that the illumination at the site was insufficient … .. Plaintiff also adduced evidence of constructive notice as to the uncovered pit… . Devita v NYY Steak Manhattan, LLC, 2023 NY Slip Op 01257, First Dept 3-14-23

Practice Point: Plaintiff allegedly tripped on debris and fell into a two-to-three-foot-deep pit from which the plywood cover had been removed. Both Labor Law 240(1) and 241(6) were therefore implicated. One defendant may have been liable as a statutory agent of the owner with supervisory authority. Two other defendants may have been liable for the dangerous conditions, including inadequate lighting, pursuant to Labor Law 200.

 

,

THE EVIDENCE FATHER NEGLECTED THE DAUGHTER (EXCESSIVE CORPORAL PUNISHMENT) WAS SUFFICIENT; BUT THE EVIDENCE FATHER DERIVATIVELY NEGLECTED THE SON WAS NOT (FIRST DEPT).

The First Department, reversing (modifying Family Court) determined the evidence father derivatively neglected the son was insufficient:

Family Court’s determination that respondent derivatively neglected his son J.L. was not supported by a preponderance of the evidence. The finding was based entirely on the excessive corporal punishment of the daughter, which took place outside the home. There was no evidence that respondent’s excessive corporal punishment was ever directed at the older child, who was 14 years old at the time, or that he was even aware of the abuse. Furthermore, there was no evidence that the son was at risk of becoming impaired, as he continued to reside with respondent after the petitions were filed … . Matter of C.L. (Edward L.), 2023 NY Slip Op 01260, First Dept 3-14-23

Practice Point: There was no evidence the son was even aware of father’s excessive corporal punishment of the daughter, which took place outside the home. The evidence father derivatively neglected the son was insufficient.

 

,

THERE WAS NO EVIDENCE THE POLICE ANNOUNCED THEIR PURPOSE (ARREST WARRANT) BEFORE ENTERING THE APARTMENT; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the suppression motion should have been granted because there was no evidence the police announced their purpose (arrest warrant) before entering the apartment:

The hearing evidence supports findings as follows: The police executing the arrest warrant knocked and heard movement in the apartment but received no response, they announced that they were police and again received no response, and they then entered the apartment after finding that the door was unlocked. Only after opening the door, and after entering the apartment, a detective announced, “NYPD arrest warrant.” There was no evidence that in any way suggests that the police, before entering the apartment, attempted to satisfy the statutory requirement of giving “notice” of their “purpose” (CPL 120.80[4] …). Accordingly, the court should have granted defendant’s motion to suppress the physical evidence at issue. People v Jones, 2023 NY Slip Op 01262. First Dept 3-14-23

Practice Point: The did not comply with the statutory requirement that they announce their purpose, here the execution of an arrest warrant, before entering the apartment. The motion to suppress should have been granted.

 

, ,

A CORPORATION (HERE A COOPERATIVE) DOES NOT OWE A FIDUCIARY DUTY TO THE SHAREHOLDERS; THE INDIVIDUAL BOARD MEMBERS MAY OWE A FIDUCIARY DUTY TO THE SHAREHOLDERS FOR INDIVIDUAL ACTIONS BUT NO ALLEGATIONS OF WRONGDOING BY BOARD MEMBERS WERE MADE (FIRST DEPT).

​The First Department, reversing (modifying) Supreme Court, noted that a corporation (or, in this case a cooperative) does not owe a fiduciary duty to its shareholders:

… [T]he second cause of action for breach of fiduciary duty as against the cooperative and the board member defendants also does not state a claim upon which relief may be granted. The cause of action cannot be sustained as against the cooperative “because a corporation owes no fiduciary duty to its shareholders” … . Furthermore, even assuming that the cause of action was addressed to the actions taken by the individual board member defendants, it “does not allege any individual wrongdoing by the members of the board separate and apart from their collective actions” taken in their capacity as board members … . Tahari v 860 Fifth Ave. Corp, 2023 NY Slip Op 01269, First Dept 3-14-23

Practice Point: A corporation does not owe a fiduciary duty to shareholders. Individual board members may owe a duty which would be breached by wrongdoing, not alleged here.

 

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