You are here: / First Department

Tag Archive for: First Department

PLAINTIFF ALLEGEDLY TRIPPED AND FELL CARRYING A PIPE DOWN A PLYWOOD RAMP IN THIS LABOR LAW 200 ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE RAMP CONSTITUTED A DANGEROUS CONDITION AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether a plywood ramp was a dangerous condition and whether the defendants had constructive knowledge of the ramp in this Labor Law 200 action. Plaintiff allegedly tripped and fell when carrying a pipe down the ramp:

Defendants established their prima facie entitlement to judgment as a matter of law on the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they did not have authority to supervise or control the means and methods of plaintiff’s work. However, to the extent those causes of action are also predicated on the existence of a dangerous or defective condition (a defective plywood ramp), triable issues of fact remain as to whether the owner or general contractor had actual or constructive notice … . Defendants’ witnesses all testified to a lack of knowledge of the plywood ramp, thereby establishing lack of actual notice. However, plaintiff raised a triable issue as to constructive notice by his deposition testimony and affidavit that he had seen the plywood ramp in place when he began working at the construction site, although he never traversed it prior to his accident, which occurred months into his work, and that defendants’ trailers were located only 30 to 50 feet from where plaintiff’s accident occurred. Contrary to defendants’ insinuations, the number of witnesses contradicting plaintiff’s account is not a basis for granting them summary judgment; it merely raises issues of credibility for the fact-finder. Jackson v Hunter Roberts Constr., L.L.C., 2022 NY Slip Op 03321, First Dept 5-19-22

Practice Point: The First Department in this Labor Law 200 action noted that a conflict between the plaintiff’s testimony and several of defendants’ witnesses on the issue of constructive notice of the allegedly dangerous condition which caused plaintiff’s slip and fall was not a sufficient ground for granting defendants’ summary judgment motion. The conflict merely raised a credibility issue for trial which is not appropriately determined at the summary judgment stage.

 

, , ,

PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who, along with other patients, was allegedly sexually assaulted by a doctor, Newman, employed by defendant hospital (Mount Sinai), was entitled to certain discovery. Plaintiff sought discovery of party statements, incident reports, the identities of the other assaulted patients, and the names of the doctor’s coworkers at the time of each assault. Plaintiff was entitled to documents not protected by the quality assurance privilege. The doctor-patient privilege did not extend to the identities of the other assaulted patients. And the names of the doctor’s coworkers were in a statement prepared by the Health and Human Services Department to which plaintiff was entitled:

We reject Mount Sinai’s assertion that privilege excuses it from complying with plaintiff’s discovery demands regarding the identities of the other three patients that defendant Newman assaulted. The doctor-patient privilege provided for by CPLR 4504(a) protects information relevant to a patient’s medical treatment, but the privilege does not cover incidents of abuse not part of a patient’s treatment … . Moreover, while the court stated that disclosure would violate HIPAA, federal regulations provide for disclosure of HIPAA-protected documents subject to a showing that the party seeking disclosure has made a good faith effort to secure a qualified protective order, and plaintiff has done so in each of her motions (45 CFR 164.512[e][ii], [v] …).

… [T]he identities of defendant Newman’s coworkers at the times of each of the assaults are relevant and must be disclosed, as those coworkers may have information concerning his conduct … . The names of the coworkers were contained in a statement of deficiencies prepared by Department of Health and Human Services, Center for Medicare and Medicaid Services, and plaintiff is entitled to production of that statement, redacted to remove conclusions of law and opinions of the Department of Health and Human Services … . Newman v Mount Sinai Med. Ctr., Inc., 2022 NY Slip Op 03327, First Dept 5-19-22

Practice Point: Here plaintiff was allegedly sexually assaulted by a doctor who pled guilty to assaulting other patients. Plaintiff sued the hospital which employed the doctor under a negligent hiring and retention theory. The names of the other assaulted patients were not protected by the physician-patient privilege. Party statements were not protected by the quality assurance privilege. And plaintiff was entitled to the names of the doctor’s coworkers.

 

, , ,

THE NEW YORK CITY ADMINISTRATIVE CODE PROVISION WHICH PROHIBITS “COMPRESSION OF THE DIAPHRAGM” (BY KNEELING, SITTING OR STANDING ON A PERSON) WHEN EFFECTING AN ARREST IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Administrative Code provision prohibiting and criminalizing the use of certain methods of restraint in effecting an arrest was not void for vagueness.

Plaintiffs challenge Administrative Code § 10-181 as unconstitutionally vague and preempted by New York State law. This provision, which became effective July 15, 2020, makes it a criminal misdemeanor to use certain methods of restraint “in the course of effecting or attempting to effect an arrest” (Administrative Code § 10-181[a]). Specifically, the statute prohibits “restrain[ing] an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck [the chokehold ban], or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm [the diaphragm compression ban]” ,,, , …

The only language plaintiffs take issue with is “in a manner that compresses the diaphragm.” But the meaning of this language, even if “imprecise” or “open-ended,” is sufficiently definite “when measured by common understanding and practices” … . Police officers — the targets of the law — can be (and are) trained on the location and function of the diaphragm. And even plaintiffs have no difficulty understanding the meaning of the word “compress[]” when used in the context of the accompanying chokehold ban, which they do not challenge. That it may not be the most accurate word, from a medical standpoint, to describe what happens to the diaphragm when someone sits, kneels, or stands on it does not mean that it is incapable of being understood. Police Benevolent Assn. of the City of N.Y., Inc. v City of New York, 2022 NY Slip Op 03329 First Dept 5-19-22

Practice Point: The NYC Administrative Code provision which prohibits and criminalizes “compressing the diaphragm” by sitting, kneeling or standing on a person when effecting an arrest is not void for vagueness.

 

,

SUPREME COURT SHOULD NOT HAVE REMOVED THE INCAPACITATED PERSON’S (IP’S) SON AS GUARDIAN OF THE PROPERTY WITHOUT HOLDING A TESTIMONIAL HEARING, CRITERIA FOR REMOVAL EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have merely accepted the Court Examiner’s position that petitioner, the Incapacitated Person’s (IP’s) son, should be removed as guardian of the property. A hearing should have been held:

Petitioner interposed an answer in which he raised issues of law and fact. He claimed, in part, that some of his actions did not require further court order but were permissible under the original order appointing him as guardian. He also claimed that he obtained prior court approval, albeit in the informal manner (i.e. emails or phone calls) employed by the previous judge who was assigned to this matter. He also made credible arguments that the decisions he made benefitted, and did not harm, the IP’s estate … .

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion and appointed a nonrelative successor guardian…. . …

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve … . The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP … . Moreover, the ultimate remedy of removal may be an abuse of discretion, where a guardian’s errors do not prejudice or harm the estate. The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the Guardian’s compensation, would be appropriate. None of these considerations were addressed by the Supreme Court before removing petitioner…. . Matter of Roberts, 2022 NY Slip Op 03336, First Dept 5-19-22

Practice Point: Here Supreme Court improperly accepted the Court Examiner’s position and removed the Incapacitated Person’s (IP’s) son as guardian of the property without holding a hearing or making any findings. A full testimonial hearing, giving petitioner (the IP’s son) the opportunity to be heard, should have been held. The court noted that appointing a stranger as guardian is a last resort and that there are options, such as reducing a guardian’s compensation, which should be considered.

 

, ,

THE INDEMNIFICATION CLAUSE IN THIS LADDER-FALL CASE STATED THAT THE CONTRACTOR FOR WHOM THE INJURED PLAINTIFF WORKED WOULD HOLD THE “OWNER’S AGENT” HARMLESS AND DID NOT MENTION THE PROPERTY OWNER; THE CONTRACT MUST BE STRICTLY CONSTRUED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE CONTRACTOR SHOULD HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the indemnification clause in the ladder-fall case must be strictly construed. The clause stated that the contractor for whom plaintiff worked, Collins, would hold harmless the “owner’s agent” but did not mention the property owner, LIC. Therefore LIC’s indemnification action against Collins should have been dismissed:

Plaintiff alleged common-law negligence, including failure to provide her with a safe ladder, and violations of Labor Law §§ 200, 202, 240(1)-(3), and 241(6). * * *

LIC commenced this third-party action against Collins asserting that “Collins was obligated to provide plaintiff, its employee, with the necessary equipment to enable her to properly and safely perform her cleaning related duties” at the premises, and that plaintiff’s injuries were due to Collins’ failure to perform its duties under the contract and provide her with the proper tools, equipment, supervision, direction, and control. The third-party complaint also asserted that Collins agreed to indemnify LIC from any accidents, injuries, claims, or lawsuits arising out of the cleaning related services Collins provided at the premises. …

The indemnification provision states that Collins shall “hold harmless the OWNER’S AGENT from all claims by Tenants or others whose personnel or property may be damaged by [Collins], its operators, and including but not limited to the use of any of the required equipment or material.” Tishman is designated as the “owner’s agent” in the contract. LIC is neither identified nor included under the indemnification provision and the indemnification provision must be “strictly construed” … . Tavarez v LIC Dev. Owner, L.P., 2022 NY Slip Op 03339, First Dept 5-19-22

Practice Point: Indemnification clauses in contracts must be strictly construed. Here the contract said the contractor for whom the injured plaintiff worked would hold harmless the “owner’s agent” and did not mention the owner. Therefore the owner’s action against the contractor for indemnification should have been dismissed.

 

, , ,

PLAINTIFF ALLEGED DEFENDANTS-ATTORNEYS DID NOT ADVISE IT OF AN AMENDMENT TO THE COMMERCIAL LEASE WHICH EFFECTIVELY ELIMINATED THE OPTION FOR PLAINTIFF TO PURCHASE THE PROPERTY FOR $11.4 MILLION IF THE LANDLORD RECEIVES A BONA FIDE PURCHASE OFFER; THE LANDLORD IN FACT RECEIVED SUCH AN OFFER AND PLAINITFF EXERCISED ITS OPTION, BUT PAID $14.5 MILLION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendants-attorneys’ motion for summary judgment in this legal malpractice action should not have been granted. Plaintiff alleged defendants-attorneys did not advise it of an amendment to the commercial lease. The lease included an option to purchase the property for $11.4 million. The amendment extinguished the option to purchase for $11.4 million upon purchase of the property. The landlord received a bona fide purchase offer and plaintiff exercised its option, but paid $14.5 million:

Defendants’ email attaching a marked-up copy of the relevant lease section does not establish as a matter of law that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. … [T]he fact that plaintiff’s agent read the amendment does not establish as a matter of law that defendants were not negligent … . Any evidence that plaintiff’s agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants’ advice that it was “housekeeping” does not disprove defendants’ negligence but is evidence that can be offered in mitigation of damages … .

… The fact that plaintiff sent the signed lease to the landlord without defendants’ knowledge does not as a matter of law refute causation. Alrose Steinway, LLC v Jaspan Schlesinger, LLP, 2022 NY Slip Op 03310, First Dept 5-19-22

Purchase Point: Here the attorneys’ alleged failure to advise the plaintiff of the significance of an amendment to a commercial lease raised a question of fact in this legal malpractice action. The amendment eliminated plaintiff’s option to purchase the property for $11.4 million if the landlord received a bona fide purchase offer. The landlord received such an offer and plaintiff exercised its option to purchase, but paid $14.5 million.

 

, , ,

PURSUANT TO THE SPECIAL FACTS DOCTRINE, THE PURCHASE AND SALE AGREEMENT FOR THIS “AS IS” SALE OF A BUILDING RELEASED THE SELLER FROM LIABILIITY FOR NEGLIGENCE AND NEGLIGENT MISREPRESENTATION, BUT NOT FOR FRAUD (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined Supreme Court properly found that the Purchase and Sale Agreement (PSA). pursuant to the special facts doctrine, did not release the seller of the building from a claim based on fraud (building was sold “as is”). But the PSA did release the seller from liability for negligence or negligent misrepresentation:

Plaintiff’s negligence and negligent misrepresentation claims against the seller are barred by the Purchase and Sale Agreement (PSA). In section 6.02 of the PSA, plaintiff agreed that it had not relied on any representations as to the condition of the building, and agreed to purchase the building “as is.” Although Supreme Court correctly found that under the special facts doctrine, section 6.02 does not serve to bar the causes of action based on fraud, the provision does, in fact, bar the causes of action based on negligence (compare TIAA Global Invs., LLC v One Astoria Sq., 127 AD3d 75, 87-88 [1st Dept 2015] [under special facts doctrine, which provides that a contractual disclaimer cannot preclude a fraud claim when the underlying facts are peculiarly within the defendant’s knowledge, “as is” and “no reliance” provisions in a real estate sales contract did not require dismissal of fraud claim under CPLR 3211]). Similarly, while the release in PSA section 19.15 exempts fraud claims from the scope of the release, plaintiff released the seller for claims relating to any defects in the building “whether the result of negligence or otherwise.” 470 4th Ave. Fee Owner, LLC v Adam Am. LLC, 2022 NY Slip Op 03204 First Dept 5-17-22

Practice Point: Here the building was sold “as is.” A provision in the Purchase and Sale Agreement (PSA) released the seller from liability for negligence or negligent misrepresentation. But, pursuant to the special facts doctrine, the PSA did not release the seller from a claim alleging fraud.

 

,

PLAINTIFF’S COMPLAINT ALLEGING HE WAS INDUCED TO SIGN A RELEASE BY FRAUD, DURESS AND/OR OVERREACHING SHOUILD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendants’ motion to dismiss to complaint should not have been granted. Plaintiff alleged he signed a released because of the fraud, duress and/or overreaching of the defendants:

The complaint and plaintiff’s affidavit raise issues of fact as to whether defendants engaged in fraud, duress, and/or overreaching to procure plaintiff’s signature on a general release of his claims against them related to his alleged fall from a 30-foot ladder while working at a construction site … . There is little dispute that the release, written in English, unambiguously released all plaintiff’s claims against defendants in exchange for $30,000 in consideration, which plaintiff received. However, plaintiff avers that he does not read English, that he did not have counsel at the time he executed the document, that he did not know the nature or purpose of the document he signed, and that defendants represented to him that the execution of the document was a mere formality required for his receipt of compensation for work performed. Plaintiff averred that he was out of work at the time, facing eviction and medical bills, and in need of financial support, and that he was hoping to travel to Puerto Rico to see his brother, who was dying. He averred that he did not understand the nature of the release he signed until he retained counsel to aid him in prosecuting a workers’ compensation claim. Rosa v McAlpine Contr. Co., 2022 NY Slip Op 03216, First Dept 5-17-22

Practice Point: Here plaintiff raised questions of fact about whether he was induced to sign a release by fraud, duress and/or overreaching. His allegations included his inability to read English, he did not have a lawyer, he did not know what he was signing, and defendants said signing was a mere formality,

 

NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER A BAVARIAN STEM DONOR REGISTRY INVOLVED IN DECEDENT’S PHYSICIANS’ SEARCH FOR A BONE-MARROW MATCH TO TREAT LEUKEMIA (FIRST DEPT).

The First Department, reversing Supreme Court, determined New York did not have jurisdiction over BSB, a Bavarian stem donor registry:

BSB was contacted through a chain of interactions between donor registries that began with decedent’s New York physicians reaching out to the National Marrow Donor Program in Minnesota to find a match for decedent so that she could undergo a bone marrow transplant to treat her leukemia. When no match was found there, the search was expanded, including to Republic of German’s central registry, and ultimately a donor was located in the BSB registry. BSB did not engage in a regular course of conduct, nor did it purposefully avail itself of the privilege of conducting activities within New York State … . Furthermore, BSB, a 20-employee not-for-profit organization, was reimbursed with a set sum by a German entity for providing the donation to decedent’s transplant center’s courier in Germany, and reimbursement was not contingent on decedent’s ability to pay, insurance, or the like. There is no evidence that BSB derived substantial revenue from the transaction or from New York, where it has no offices, employees, agents, marketing, registrations, or presence … . Even if the long-arm statute applied, BSB does not have the minimum contacts necessary such that it should have reasonably expected to be brought into court here … .Aloisio v New York-Presbyt./Weill Cornell Med. Ctr., 2022 NY Slip Op 03205, First Dept 5-17-22

Practice Point: A Bavarian stem donor registry did not have sufficient contacts with New York to allow New York to exercise long-arm jurisdiction over the registry. The registry played a role in decedent’s physicians’ search for a bone-marrow match to treat decedent’s leukemia. The registry had no presence in New York and did not purposely conduct activities in New York. Even if the long-arm statute applied, the registry did not have the minimum contacts with New York required under a due-process analysis.

 

,

THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s validating petition petition should not have been dismissed on the ground that the petition was not verified because: (1) the respondents waived the issue by not objecting with due diligence; and (2) although the exact words re: verification in CPLR 3021 were not used, the language used in the petition had the same effect as verification:

“Section 16-116 of the Election Law requires that a special proceeding brought under article 16 of the Election Law shall be heard upon a verified petition. The requirement is jurisdictional in nature” … . However, the objection to the alleged lack of verification of the validating petition was waived by the objectors’ failure to raise that objection with due diligence as required by CPLR 3022 … .

Moreover, the mere fact that a petition does not use the exact words set forth in CPLR 3021 does not mean that the petition is not verified, so long as the language used has the same effect as a verification … . Here, the language used in the validating petition had the same effect as a verification and, therefore, the validating petition was “verified” within the meaning of Election Law § 16-116. Matter of Francois v Rockland County Bd. of Elections, 2022 NY Slip Op 03190, Second Dept 5-12-22

Practice Point: Under the Election Law a validating petition must be verified and the absence of verification is a jurisdictional defect. The failure raise the issue with due diligence, however, waives the objection pursuant to CPLR 3021. In addition, to constitute a valid verification, the exact language in CPLR 3021 need not be used. Here he language in the validating petition. although not exactly as prescribed in CPLR 3021, was deemed sufficient to verify it.

 

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