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THE FOUR-MONTH STATUTE OF LIMITATIONS FOR BRINGING AN ARTICLE 78 PETITION CHALLENGING TERMINATION OF SECTION 8 RENT-SUBSIDY BENEFITS STARTS WHEN THE TENANT BECOMES AWARE OF THE TERMINATION; THE PETITION WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner became aware that the Section 8 rent subsidy benefits were terminated in December 2019 triggering the four-month statute of limitations for challenging the termination. Therefore petitioner’s 2024 article 78 petition was time-barred:

The four-month statute of limitations applies to proceedings terminating Section 8 benefits, and it begins to run upon tenant’s receipt of the T3 letter advising the tenant of that termination (see CPLR 217[1] …). The statute of limitations may be triggered in the absence of actual notice where, as here, the party knew or should have known about the determination … . The record shows petitioner had actual notice in December 2019, so the statutory limitation period to challenge termination of her subsidy started no later than December 31, 2019, and expired on April 30, 2020, well before she commenced the instant proceeding. Matter of Cruz v New York City Hous. Auth. (NYCHA), 2026 NY Slip Op 00420, First Dept 1-29-26

Practice Point: The statute of limitations for bringing an article 78 petition challenging the termination of section 8 rent-subsidy benefits starts when the tenant receives the T3 letter or when the tenant knew or should have known about the termination.

 

PLAINTIFF TRIPPED AND FELL OUTSIDE, NOT IN A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should have been dismissed because plaintiff tripped and fell outside and not in a “passageway” within the meaning of Industrial Code 23-1.7(e)(1):

… [T]he Labor Law § 241(6) claim insofar as it was predicated on Industrial Code § 23-1.7(e)(1), as the accident occurred outdoors and therefore did not take place in a “passageway” within the meaning of the Industrial Code provision (see Quigley v Port Auth. of N.Y. & N.J., 168 AD3d 65, 67-68 [1st Dept 2018] [holding that a “passageway” under § 23-1.7(e)(1) pertains to “an interior or internal way of passage inside a building”]). Lacruise v Memorial Sloan-Kettering Cancer Ctr., 2026 NY Slip Op 00424, First Dept 1-29-26

Practice Point: At least in the First Department, the Industrial Code reference to  “passageway” means an interior passage inside a building, not a walkway outside.

 

PLAINTIFF WAS INJURED WHILE STANDING ON INSTALLED REBAR WHICH WOBBLED AS A CO-WORKER HANDED HIM A PIECE OF REBAR; HE DROPPED THE REBAR BUT GRABBED IT BEFORE IT FELL ANY FURTHER, INJURING HIS SHOULDER; INJURY WHILE ATTEMPTING TO PREVENT AN OBJECT FROM FALLING IS COVERED BY LABOR LAW 240(1) (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 dropped a piece of rebar while standing on installed rebar which wobbled. The rebar fell about one foot before he grabbed it to keep it from falling further, injuring his shoulder. Injury from attempting to prevent an object from falling is covered by Labor Law 240(1):

Contrary to defendants’ assertion otherwise, they are not entitled to summary judgment on the grounds that plaintiff did not fall and was not struck by a falling object … . On the contrary, liability under the statute may be imposed where, as here, a plaintiff can establish that their injury was caused by an attempt to catch something or prevent something from falling further … . The record establishes that plaintiff was injured in the act of trying to catch a falling piece of rebar, and that his injury may have been prevented had defendants supplied a proper hoist to safely transfer the rebar… . According to the evidence submitted, although a crane was sometimes used to transfer heavy rebar at the job site, no crane was available at the time.

… [D]efendants failed to establish that that the previously installed rebar, which was the sole platform available for plaintiff to stand on while his coworkers passed him the rebar from above, was stable and safe for plaintiff to be working on at an elevated height … . Alonzo v RP1185 LLC, 2026 NY Slip Op 00306, First Dept 1-27-26

Practice Point: Injury when attempting to prevent an object from falling is covered by Labor Law 240(1).​

 

PLAINTIFF WAS INJURED WHEN A DRILL FELL FROM A CO-WORKER WHO WAS STANDING ON AN A-FRAME LADDER; THE DRILL SHOULD HAVE BEEN TETHERED TO THE CO-WORKER’S PERSON; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this Labor Law 240(1) action was entitled to summary judgment in this falling object case. Plaintiff was struck by a drill which fell from a co-worker standing on an A-frame ladder. The drill should have been tethered to the co-worker’s person:

… [T[he coworker’s elevated work atop the A-frame ladder, warranted overhead protection or tethering of the tools to the coworker’s person to safeguard other workers from falling objects … . Elmaz v CNY Constr. LLC, 2026 NY Slip Op 00313, First Dept 1-27-26

Practice Point: Labor Law 240(1) requires protection against falling objects. Here a tool used by a co-worker who was standing on an A-frame ladder fell and struck plaintiff. Plaintiff was entitled to summary judgment because the tool should have been tethered to the co-worker’s person.

 

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THE INSTALLATION OF A TEMPORARY PEDESTRIAN TRAFFIC SIGNAL AT AN INTERSECTION IS NOT SUBJECT TO THE REQUIREMENT THAT A MUNICIPALITY HAVE WRITTEN NOTICE OF A DEFECTIVE CONDITION; THE COMPLAINT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS NO “WRITTEN NOTICE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this pedestrian-vehicle accident case should not have been dismissed on the ground the defendant city did not have written notice of the allegedly negligently designed temporary pedestrian signal at an intersection. The written notice requirement does not apply to the failure to maintain or install pedestrian signals. In addition, the expert evidence created a question of fact whether the city created the defect through an affirmative act of negligence:

… [T]he requirement that the municipality have prior written notice of the alleged defect before it can be held liable for injuries arising from the defect does not apply here (Administrative Code of City of NY § 7-201[c][2]). The prior written notice requirement applies to physical defects such as holes or cracks in the street, not the failure to maintain or install pedestrian signals … .

Neither plaintiff’s expert nor defendants’ expert, both professional engineers, cite a standard or regulation setting forth specific height requirements for temporary pedestrian signals. In addition, the experts disagree as to whether the temporary pedestrian signal was installed at a proper height. …

An issue of fact also exists as to whether the height or the placement of the signal proximately caused plaintiff’s accident. Although defendants’ expert opined that the temporary pedestrian signal would have been within plaintiff’s field of view, plaintiff testified that he remembered looking for a signal and not seeing one. Plaintiff’s testimony, together with the conflicting expert opinions as to whether the pedestrian signal was installed at a proper height, is sufficient to raise a triable issue of fact as to the City’s negligence … . Harelick v De La Cruz Lora, 2026 NY Slip Op 00315, First Dept 1-27-26

Practice Point: The requirement that a city have written notice of a dangerous condition before liability for an injury will attach applies to physical defects like holes or cracks in the street. It does not apply to an allegedly negligently designed temporary pedestrian traffic signal.

 

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THE SIX-MONTH GRACE PERIOD FOR FILING A NEW ACTION AFTER DISMISSAL (CPLR 205 (A)) DOES NOT APPLY IF THE UNDERLYING STATUTE OF LIMITATIONS FOR THE ACTION HAS NOT RUN; PLAINTIFF WAS FREE TO COMMENCE ANOTHER ACTION AFTER DISMISSAL ANYTIME WITHIN THE STATUTE-OF-LIMITATIONS PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint should not have dismissed because the action wasn’t recommenced within six months of dismissal (CLPR 205 (a)) because the statute of limitations on the underlying cause of action had not run. The six months grace period in CPLR 205 (a) only applies when the statute has run:

… CPLR 205(a) does not apply because “[w]here, as here, the statutory time limit has not expired . . . [CPLR 205(a)] cannot be applied in such a way as to shorten the period otherwise available to the plaintiff” … . The alleged slip and fall took place on August 24, 2021, and plaintiff filed the prior action on April 5, 2022, which was then dismissed by order entered on or about December 7, 2023. Plaintiff then refiled the instant complaint on August 21, 2024, within the three-year statute of limitations for his personal injury claim.

Nor is the refiled complaint barred by the doctrine of res judicata because the order dismissing plaintiff’s prior action was not on the merits … . Defendants moved to dismiss the prior action for failure to respond to discovery demands. Plaintiff did not oppose the motion, which was granted “without opposition,” and with no indication that the dismissal was on the merits or with prejudice. Supreme Court was without authority to revise the prior order by adding the words “with prejudice” because that revision substantively changes the prior order … . … [P]laintiff was not required to contest the dismissal of the prior action before commencing this action … . Hermina v 2050 Valentine Ave., LLC, 2026 NY Slip Op 00316, First Dept 1-27-26

Practice Point: The six-month grace period for filing a new action after dismissal (CPLR 205 (a)) only applies if the statute of limitations has run.

 

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THE PROBATION-CONDITION REQUIRING DEFENDANT TO PAY THE MANDATORY SURCHARGE AND COURT FEES WAS STRUCK BECAUSE DEFENDANT IS INDIGENT; THE FACIAL CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS WERE NOT PRESERVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) the challenge to the probation condition that defendant pay the mandatory surcharge and court fees survives the waiver of appeal; (2) the condition should be struck because defendant is indigent; (3) the facial constitutional challenges to probation conditions were not preserved:

In determining whether a condition is reasonably necessary and related to a defendant’s rehabilitation, the Court must consider the particular circumstances of a defendant’s case … .

Defendant, who is indigent and a first-time offender, has only sporadic income and otherwise has been supported by his mother. Under these circumstances, the requirement that he pay a total of $375 in surcharges and fees as a condition of probation “will not assist in ensuring [that] he leads a law-abiding life and is not reasonably related to his rehabilitation” … . Accordingly, that condition is stricken. People v Acosta, 2026 NY Slip Op 00324, First Dept 1-27-26

Practice Point: The probation-condition requiring payment of the mandatory surcharge and court fees should not have been imposed on this indigent defendant.​

 

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TWO IRRELEVANT PROBATION CONDITIONS STRUCK, NON-CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS NEED NOT BE PRESERVED; FACIAL CONSTITUTIONAL CHALLENGES SURVIVE A WAIVER OF APPEAL BUT MUST BE PRESERVED; AS-APPLIED CONSTITUTIONAL CHALLENGES ARE PRECLUDED BY THE WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) non-constitutional challenges to probation conditions need not be preserved for appeal; (2) although the facial constitutional challenges to probation conditions survive a waiver of appeal, they were not preserved for appeal; (3), the as-applied constitutional challenges are precluded by the waiver of appeal; and (4) two probation conditions must be struck as not relevant to defendant’s criminal history or personal life. In addition, the decision identifies several probation conditions which were deemed properly imposed in this drug-possession case:

At the time of his arrest, defendant possessed 100 glassines of heroin and 50 vials of crack cocaine. Accordingly, the sentencing court providently deemed it “reasonably necessary” to order defendant to “[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people” “to insure that the defendant will lead a law-abiding life or to assist him to do so” … . Based on defendant’s selling of heroin, the court also properly ordered him to “[w]ork faithfully at a suitable employment or pursue a course of study or vocational training … that can lead to suitable employment” and to “[s]ubmit proof of such employment, study or training … . For the same reason, the court providently required defendant to submit to testing for alcohol and illegal substances and to participate in substance abuse programming … . …

There is … no evidence to support requiring defendant, who has no children, to “[s]upport dependents and meet other family responsibilities” … . … [T]here is no evidence to support requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang … “. People v Tompson, 2026 NY Slip Op 00325, First Dept 1-27-26

Practice Point: Consult this decision for insight into what probation conditions are appropriate for a drug-possession conviction.

Practice Point: Consult this decision for insight into the appealability of challenges to probation conditions.

 

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NINE OF ELEVEN PROBATION CONDITIONS STRICKEN AS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION, INCLUDING THE CONDITION THAT DEFENDANT PAY THE MANDATORY SURCHARGE AND OTHER FEES (FIRST DEPT).

The First Department determined nine probation conditions must be stricken as not reasonably related to the defendant’s rehabilitation:

… [N]ine conditions were “not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life” (… Penal Law § 65.10[1]). There is no evidence that defendant had a history of gang affiliation or that his offense was connected to gang activity, and as such the condition related to a prohibition on gang affiliation … .

Considering defendant’s denial of drug and alcohol use, the Department of Probation’s assessment of defendant for substance abuse with no recommendation for further treatment, and the lack of any evidence defendant’s offense involved drug or alcohol use, conditions related to drug and alcohol testing and treatment … .

The condition of defendant’s probation requiring that he pay the mandatory surcharge and other fees … is not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life, and must be stricken … .

The remaining conditions that must be stricken … are not applicable to defendant or reasonably related to his rehabilitation … . People v Balogh, 2026 NY Slip Op 00323, First Dept 1-22-26

Practice Point: Here the probation condition that defendant pay the mandatory surcharge and other fees was stricken as not reasonably related to defendant’s rehabilitation.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT WAS EXEMPT FROM THE NYC SIDEWALK LAW (MAKING ABUTTING PROPERTY OWNERS RESPONSIBLE FOR SIDEWALK MAINTENANCE) BECAUSE HIS PROPERTY IS OWNER-OCCUPIED; HOWEVER THERE IS A QUESTION OF FACT WHETHER DEFENDANT IS LIABLE UNDER THE COMMON-LAW “SPECIAL USE” DOCTRINE; DEFENDANT USED THE SIDEWALK AS A DRIVEWAY FOR HIS GARAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing summary judgment in favor of defendant property owner in this slip and fall case, determined there was a question of fact whither defendant was liable for a sidewalk defect bases upon defendant’s “special use” of the sidewalk as a driveway leading to defendant’s garage. Supreme Court properly found that defendant was not liable under the NYC Sidewalk Law, which makes abutting property owners responsible for sidewalk maintenance, because of the statutory exemption for owner-occupied properties. The statutory exception was not, however, a ground for summary judgment here because defendant could be liable under the common-law “special use” doctrine:

The parties agree that the defendant/owner made “special use” of the sidewalk by using it as a driveway … . Where the parties disagree is with respect to the scope of duty under the “special use” exception to liability, and whether it contains a causation requirement that is tied to the owner’s special use. We find that it does. * * *

… [A]n owner will only be liable for a defect on the abutting sidewalk if it is tied to his special use of the property, and not if it arises from a wholly unrelated cause … . * * *

… [T]here are three distinct bases for abutting owner liability at common law: (1) when the owner derives a “special use” from the subject area, (2) when the owner causes the defect, and (3) when a statute otherwise imposes liability. * * *

We are … not persuaded by plaintiff’s argument that it is fair and reasonable to expect an abutting owner who derives a special benefit from a public sidewalk to shoulder the full responsibility for maintaining that part of the sidewalk … . It would be more unfair to saddle a property owner with the general responsibility of maintaining the sidewalk abutting its driveway when its special use did not give rise to the defect. Prete v JJ Hoyt LLC, 2026 NY Slip Op 00325, First Dept 1-22-26

Practice Point: Even where, as here, an abutting property owner is exempt from the NYC statutory requirement to maintain the abutting sidewalk, the property owner may be liable for a defect in the sidewalk based upon the owner’s special use of the sidewalk, here as a driveway leading to the owner’s garage.

 

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