You are here: / First Department

Tag Archive for: First Department

IN THIS SIDEWALK SLIP AND FALL CASE, THE SUPPORT POLE FOR THE SIDEWALK TENT FURNISHED THE OCCASION FOR THE SLIP AND FALL BY REQUIRING PLAINTIFF TO CHOOSE WHICH SIDE OF THE POLE TO WALK ON BUT WAS NOT THE PROXIMATE CAUSE OF THE SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the support pole for the sidewalk shed furnished a condition for the sidewalk slip and fall but was not the proximate cause of the fall:

The record established as a matter of law that the sidewalk shed was not a proximate cause of plaintiff’s injuries. Plaintiff testified that the support pole for the sidewalk shed was placed in the middle of the sidewalk, dividing the area into two paths that were three feet wide on each side, and that she and her husband elected to walk side-by-side on the path to the left nearest the tree well. Plaintiff stated that her husband “nudged” her to the left, and her foot touched the edge of the tree well, which was not level with the sidewalk, causing her to fall. This testimony established that the placement of the sidewalk shed support pole did not compel plaintiff to step into the tree well to proceed forward, but that its placement merely facilitated the accident or furnished the occasion for it … . Kalnit v 141 E. 88th St., LLC, 2022 NY Slip Op 06552, First Dept 11-17-22

Practice Point: A condition can furnish the occasion for an accident without being the proximate cause of the accident. Here a support pole for a sidewalk tent required plaintiff to choose which side of the pole to walk on but did not cause her slip and fall (she stepped in a tree well).

 

, , ,

FAILURE TO FOLLOW DECEDENT’S DIRECTIVES IN A LIVING WILL OR HEALTHCARE PROXY CAN CONSTITUTE MEDICAL MALPRACTICE; HERE THERE WERE QUESTIONS OF FACT ABOUT WHICH HEALTHCARE PROXY APPLIED, WHETHER A PROXY WAS REVOKED BY DECEDENT, AND WHETHER THE TREATMENT GIVEN TO DECEDENT WAS APPROVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact concerning which of two contradictory healthcare proxies applied and whether one of the healthcare proxies was revoked by decedent’s conversations:

Plaintiff commenced an action against defendants alleging medical malpractice based on the various health proxies and forms. Plaintiff claims that defendants breached their agreement with the decedent by administering antibiotics and IV Hydration from April 15, 2017 onwards that prolonged his life.

Here, there are issues of fact that preclude summary judgment. It is unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST [Forgoing Life-Sustaining Treatment Including DNR] governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). Significantly, it is not clear from the record whether the treatment prolonged decedent’s life, as neither side submits an expert affidavit. There is also a question as to whether decedent’s health care agents approved the very treatment for which they now seek to hold defendants liable. Lanzetta v Montefiore Med. Ctr., 2022 NY Slip Op 06554, First Dept 11-17-22

Practice Point: Failure to follow a decedent’s directives in a living will or healthcare proxy can constitute medical malpractice. The directives can be orally revoked.

 

, ,

THE THREE-YEAR STATUTE OF LIMITATIONS FOR AGE DISCRIMINATION CLAIMS UNDER THE NYS AND NYC HUMAN RIGHTS LAW IS TOLLED BY FILING A CHARGE FOR AGE DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the age discrimination claims under the NYS and NYC Human Rights Law were timely brought because the three-year statute of limitations was tolled when plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC):

Plaintiff’s action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8-107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) … . The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies … .

Moreover, Administrative Code § 8-502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.” The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8-502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” … . Gabin v Greenwich House, Inc., 2022 NY Slip Op 06428, First Dept 11-15-22

Practice Point: Filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) tolls the three-year statute of limitation for filing age discrimination claims pursuant the NYS and NYC Human Rights Law.

 

,

​ THE GUARDIAN OF THE PERSON AND PROPERTY OF THE INCAPACITATED PERSON (IP) AND THE ATTORNEY APPOINTED TO REPRESENT THE IP WERE PROPERLY REMOVED AND DISCHARGED WITHOUT A TESTIMONIAL HEARING, WHICH IS NOT REQUIRED BY THE MENTAL HYGIENE LAW; THE GUARDIAN AND THE ATTORNEY FAILED TO INVESTIGATE THE BONA FIDES OF THE IP’S MARRIAGE AND THE PRENUPTIAL AGREEMENT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gische, determined the temporary guardian of the person and property (Mock) and the attorney appointed represent the incapacitated person (IP), Edgar, were properly removed and discharged without a testimonial hearing. The opinion is rich with allegations Edgar was being victimized financially which cannot be fairly summarized here:

On October 2, 2018, Alison Loew, the sister and only sibling of Edgar Valentine Loew, brought a petition for the appointment of an article 81 guardian for her then 74-year-old brother. The petition alleged that Edgar, who is wealthy, but suffers from mental health issues and has some physical limitations, was the victim of systematic financial exploitation by Rachida Naciri. …

A court evaluator (Britt Burner) was appointed on October 2, 2018, appellant Gary Elias was appointed as Edgar’s attorney, and appellant Judy S. Mock was appointed as Edgar’s temporary guardian of the person and property. * * *

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 (see Mental Hygiene Law §§ 81.16[c]; 81.35). 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, 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 … .

Although a guardian cannot be summarily removed in the absence of a fully developed record or without any findings, and a hearing may be required where material facts are disputed … , here the parties had not only fully briefed [the] motion, but the salient facts were also known to the court and largely undisputed. A decision to remove a guardian of the person and property of an IP is within the sound discretion of the trial court … . Matter of Loew, 2022 NY Slip Op 06436, First Dept First Dept 11-15-22

Practice Point: The guardian and the attorney appointed to represent the incapacitated person (IP) were properly removed and discharged without a testimonial hearing, which is not required by the Mental Hygiene Law. The guardian and the attorney failed to investigate the bona fides of the IP’s marriage and prenuptial agreement.

,

PLAINTIFF PEDESTRIAN ALLEGED THE NEGLIGENCE OF A TRAFFIC OFFICER IN DIRECTING TRAFFIC CAUSED THE ACCIDENT; PLAINTIFF DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP BETWEEN THE CITY AND PLAINTIFF, A PREREQUISITE FOR MUNICIPAL LIABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-pedestrian’s complaint against the city in this traffic accident case should have been dismissed. Plaintiff alleged the traffic officer’s negligence in directing traffic caused the accident. The First Department found there was no demonstration of a “special relationship” between plaintiff and the city, a prerequisite for municipal liability:

Neither the notice of claim nor the complaint alleges the factual predicate for the special relationship theory between plaintiff and the City, as required to hold the City liable for plaintiff’s injuries based on a traffic officer’s alleged negligence in directing traffic and pedestrians at an intersection where plaintiff was crossing the street … . Plaintiff also did not sufficiently allege that the officer, in directing traffic, took control of “a known and dangerous safety condition” so as to set forth the existence of a special duty … . Plaintiff alleged only that the traffic officer negligently directed a vehicle at the intersection, causing the vehicle to hit her, thereby creating a dangerous condition; however, the dangerous condition must exist prior to the traffic officer’s assumption of any duty … . Plaintiff did not assert that the intersection was inherently dangerous or that the drivers of the cars at the intersection were violating any safety laws before the officer was directing pedestrians. Polito v Escorcia, 2022 NY Slip Op 06447, First Dept 11-15-22

Practice Point: In this pedestrian accident case, the plaintiff alleged the negligence of the traffic officer in directing traffic caused the accident. The plaintiff failed to demonstrate a special relationship between the city and plaintiff, a prerequisite for municipal liability.

 

,

PLAINTIFF ALLEGED DEFENDANT CORPORATION’S REGISTRATION STATEMENT CONTAINED FALSE AND MISLEADING CLAIMS WHICH INDUCED PLAINTIFF TO BUY STOCK IN DEFENDANT’S CORPORATION; THE CLAIMS IN DEFENDANT’S REGISTRATION STATEMENT WERE MERE PUFFERY AND WERE NOT ACTIONABLE VIOLATIONS OF THE SECURITES ACT OF 1933 (FIRST DEPT).

he First Department, reversing Supreme Court, determined the complaint alleging several violations of the Securities Act of 1933 should have been dismissed. The complaint alleged that it was induced to buy stock by defendant’s registration statement. The First Department concluded the statements not false or misleading and therefore were not actionable:

The … registration statement … includes the following statements: “We believe we have created a financially strong company built upon a foundation of three thriving, independent brands with significant global growth potential.” “New product development is a key driver of the long-term success of our brands. We believe the development of new products can drive traffic by expanding our customer base.” “We face intense competition in our markets, which could negatively impact our business. . . Our ability to compete will depend on the success of our plans to improve existing products, to develop and roll-out new products, [and] to effectively respond to consumer preferences.” * * *

… [T]he statements were nonactionable immaterial puffery and/or nonactionable opinion … .

The statements did not become misleading by omission as a result of a failure to disclose a slight decline in “same-store sales” for a single quarter’s sales … . City of Warwick Mun. Empls. Pension Fund v Restaurant Brands Intl. Inc., 2022 NY Slip Op 06315, First Dept 11-10-22

Practice Point: Statements which are mere puffery are not actionable violations of the Securities Act of 1933. Here plaintiff alleged false and misleading claims in defendant corporation’s registration statement induced plaintiff to buy defendant corporation’s stock. Supreme Court should have granted defendant’s motion to dismiss the complaint.

 

, , ,

BG, AN ADOLESCENT OFFENDER (AO) WITHIN THE MEANING OF THE “RAISE THE AGE ACT,” ASSAULTED A MAN AND THREW HIM ON THE SUBWAY TRACKS; A BYSTANDER JUMPED DOWN TO HELP THE ASSAULT VICTIM; THE BYSTANDER WAS KILLED BY A SUBWAY TRAIN WHICH STOPPED BEFORE REACHING THE ASSAULT VICTIM; THE JUDGE RULED THE MATTER SHOULD BE TRANSFERRED TO FAMILY COURT; THE PEOPLE SOUGHT A WRIT OF PROHIBITION WHICH WAS DENIED (FIRST DEPT).

The First Department denied the People’s request for a writ of prohibition to prevent respondent judge from sending a criminal case involving an adolescent offender (AO) to Family Court pursuant to the “Raise the Age Law.” In criminal matters involving AO’s the Raise the Age Law allows judges to decide whether the matter should heard in Family Court. Here BG, the AO, assaulted the victim  in a subway station and threw the victim on the tracks. A bystander jumped down to try to help the victim. The train was able to stop before reaching the assault victim, but the bystander who tried to help the victim was killed by the train:

Justice Semaj rejected the People’s argument that BG engaged in “heinous” conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was “rebutted by the video footage offered by the People,” which showed that the surviving victim “was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm’s way.” The court further noted that Hueston [the bystander] chose to jump onto the train tracks, and that BG left after he “was told to leave by [Hueston].” … . * * *

“A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” … . “Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable” … . The Court of Appeals has stressed that, in the context of criminal proceedings, the writ should be issued “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction” … . “Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself” … . Matter of Clark v Boyle, 2022 NY Slip Op 06316, First Dept 11-10-22

Practice Point: Pursuant to the “Raise the Age Law” criminal cases involving adolescent offenders (AO’s) are reviewed by a judge who can chose to have the case heard in Family Court. The AO in this case assaulted a man and threw him onto subway tracks. The man survived but a bystander who tried to help him was killed by the train. The People sought a writ of prohibition to prevent the transfer to Family Court. The First Department laid out the strict criteria for a writ of prohibition and denied it.

 

, , ,

PETITIONER NYC FIREFIGHTER WAS DENIED ACCIDENTAL DISABILITY RETIREMENT (ADR) BENEFITS WITHOUT ANY EXPLANATION IN THE MEDICAL BOARD’S FINDINGS; THE MATTER WAS REMITTED FOR A NEW DETERMINATION BASED ON A RECORD ADEQUATE FOR REVIEW (FIRST DEPT).

The First Department, annulling the denial of accidental disability retirement (ADR) benefits in this firefighter-disability case, determined that the Medical Board’s failure to explain the reasons for its conclusion there was no accident and the injuries were not debilitating required remittal to the Medical Board and a new determination by the Board of Trustees with a record adequate for review:

… [T]he Medical Board found petitioner to be disabled on account of the left shoulder injuries he sustained on March 22, 2018. However, citing “inconsistencies” and a “lack of witnessed accounts . . . that would suggest . . . an accident,” the Board denied petitioner an ADR benefit. When the insufficient explanation was raised before the Board of Trustees, they acknowledged that a witness statement was not necessary, and stated that they did not understand what the Medical Board was referring to with regard to inconsistencies in the manner of petitioner’s injuries. Nevertheless, when the Board of Trustees reconsidered the matter, it simply took a vote on petitioner’s application without any deliberation or indication as to why he had been denied an ADR benefit, issuing a conclusory denial without any explanation as to why they had adopted the Medical Board’s unsupported statements about alleged inconsistencies concerning the nature of petitioner’s injuries.

The Medical Board failed to provide any factual basis concerning the alleged inconsistencies and why it did not believe petitioner’s injuries to be accidental. Further, the determination of the Medical Board was devoid of any articulated basis for its conclusion that the limitations of petitioner’s cervical and lumbar spine were not a debilitating or incapacitating condition for performing the duties of a firefighter. The failure to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review … . Matter of Reynolds v New York City Fire Pension Fund, 2022 NY Slip Op 06330, First Dept 11-10-22

Practice Point: Here the injured NYC firefighter was denied accidental disability retirement (ADR) but the Medical Board did not give any reasons for its conclusion. The findings were annulled and the matter remitted for a new determination and the creation of an adequate record for review.

 

,

ALTHOUGH DEFENDANT PORT AUTHORITY OF NEW YORK AND NEW JERSEY (PANYNJ) WAS THE LESSOR OF THE PROPERTY WHERE PLAINTIFF WAS INJURED IN THIS LABOR LAW 241(6) ACTION, IT WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND, THEREFORE, WAS A PROPER DEFENDANT; ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, SHE WAS IN AN AREA USED TO CREATE MATERIALS FOR THE CONSTRUCTION SITE, WHICH IS COVERED BY THE LABOR LAW (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined Port Authority of New York and New Jersey (PANYNJ), although the lessor of the property where plaintiff was injured in this Labor Law 241 (1) action, was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Although plaintiff was not injured at the construction site, she was injured where materials were being prepared for use in the construction:

PANYNJ failed to establish its entitlement to summary judgment, as the record presents issues of fact as to whether PANYNJ was liable to plaintiff under Labor Law § 241(6). Although PANYNJ leased control of the property to RHCT and transferred responsibility for the maintenance of the terminal to RHCT, PANYNJ was nevertheless the owner of property for purposes of Labor Law § 241(6). The operating agreement between PANYNJ and RHCT permitted RHCT to use the property, and set out conditions on RHCT’s use of the property. The agreement also set forth the scope and manner of the work to be performed and provided that RHCT was required to provide PANYNJ with a monthly profit and loss report. The general manager for PANYNJ testified that RHCT was required to obtain PANYNJ’s consent to sublicense any portion of the property. Additionally, under the purchase order between Tutor Perini and TBTA, the owner of the bridge project, PANYNJ was to be paid a port security charge, among other charges.

As a result, the evidence created a sufficient nexus between PANYNJ and the project, and thus between PANYNJ and plaintiff, to support an imposition of liability under Labor Law § 241(6) … . Plaintiff’s task of grinding bevels on the deck panels to be installed on the bridge also falls under the Labor Law because the protections of the statute extend to areas where materials or equipment are being prepared to be used in construction … .Musse v Triborough Bridge & Tunnel Auth., 2022 NY Slip Op 06171, First Dept 11-3-22

Practice Point: Although defendant was a lessor of the property where plaintiff was injured in this Labor Law 241(6) action, it was an “owner” within the meaning of the Labor Law and therefore was a proper defendant. Even though plaintiff was not injured at the construction site, the Labor Law applies because she was injured in an area used to prepare materials for the construction site.

 

,

THE LESSEE OF THE PROPERTY, INFOR, CONTRACTED FOR THE WORK BEING DONE AT THE TIME OF PLAINTIFF’S INJURY IN THIS LABOR LAW 240(1) ACTION; THEREFORE INFOR WAS AN “OWNER” WITHIN THE MEANING OF THE LABOR LAW AND WAS A PROPER DEFENDANT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the lessee of the property (Infor) was a proper party in this Labor Law 240(1) action because it had contracted for the work done at the time of plaintiff’s injury:

Plaintiff claims he was drilling metal tracks onto a wall when the Baker scaffold on which he was standing overturned, causing him to fall and sustain injuries. 635 owned the building in which plaintiff was working, and defendant SL Green Realty Corp. (SL Green) was 635’s managing agent. Infor leased the premises from 635, and retained JRM as the general contractor to perform construction work. JRM, in turn, retained Montec and nonparty Premier Builders, Inc., plaintiff’s employer, as subcontractors to perform various aspects of the work. * * *

The Labor Law § 240(1) claim should be reinstated against Infor, as the court incorrectly concluded that Infor was not a proper Labor Law defendant. Although Infor leased the premises from 635, it may still be held liable as an “owner” under the statute because it contracted for the construction work being performed at the time of plaintiff’s accident … . For the same reasons that plaintiff is entitled to partial summary judgment against 635 and JMR, plaintiff’s motion for partial summary on the Labor Law § 240(1) claim against Infor should be granted, and Infor’s motion for summary judgment dismissing the claim against it should be denied. Otero v 635 Owner LLC, 2022 NY Slip Op 06172, First Dept 11-3-22

Practice Point: A lessee may be considered a property “owner” in a Labor Law 240(1) action when the lessee contracted for the work being done when the plaintiff was injured.

 

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