You are here: / First Department

Tag Archive for: First Department

,

DEFENDANT ALLEGED HE DID NOT SEE THE PEDESTRIAN HE STRUCK UNTIL AFTER THE CONTACT OCCURRED; DEFENDANT’S EMERGENCY-DOCTRINE DEFENSE SHOULD HAVE BEEN STRUCK (FIRST DEPT).

The First Department, reversing (modifying Supreme Court) determined defendant’s allegations did not support the “emergency” defense in this vehicle-pedestrian accident case:

Defendant maintains that he did not see plaintiff before she was struck by his vehicle and that she was not in the crosswalk when he began turning onto the avenue; it was only after plaintiff was struck that defendant observed her in the crosswalk. “Without having perceived or reacted to any emergency, the defendant may not rely on the emergency doctrine to excuse [his] conduct” … . De Diaz v Klausner, 2021 NY Slip Op 05624, First Dept 10-14-21

 

,

THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s assault convictions, determined the evidence defendant shared the co-defendant’s intent to stab the victim was insufficient:

Defendant’s convictions of attempted assault in the first degree and assault in the second degree, charged under an acting in concert theory, were not supported by legally sufficient evidence …  These charges required proof that when the codefendant stabbed the victim, defendant shared the codefendant’s intent to do so; defendant was not convicted of any assault crimes where his liability was based on his intent to commit robbery. During a robbery attempt, the codefendant stabbed the victim from behind several times with a small knife. However, there was no evidence that defendant, who was standing in front of the victim and restraining him, knew that the codefendant had a knife or was planning to use it. “[T]he use of the knife was not open and obvious” … , and defendant released the victim within seconds of the stabbing. Under these circumstances, the record does not support a conclusion beyond a reasonable doubt that defendant was aware of the use of the knife but continued to participate in the assault … . Accordingly, the evidence did not establish defendant’s accessorial liability (see Penal Law § 20.00) for these crimes. People v Grosso, 2021 NY Slip Op 05640, First Dept 10-14-21

 

,

WHERE (1) THE DISPUTE IS ABOUT WHETHER THE TENANT IS OBLIGATED TO REMOVE PROPERTY FROM THE PREMISES, (2) THE TENANT TIMELY SURRENDERS THE PREMISES, AND (3), THE LEASE IS SILENT ABOUT THE PAYMENT OF RENT AFTER THE TERM OF THE LEASE, USE AND OCCUPANCY DAMAGES ARE NOT AVAILABLE TO THE LANDLORD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined “use and occupancy” is not an available measure of damages where the tenant timely surrendered the premises and there was nothing in the lease about additional rent after the term of the lease. The dispute here was whether the lease obligated the tenant to remove property from the premises:

… [U]se and occupancy is not an available measure of damages on plaintiff landlord’s claims. “[T]he measure of damages for a tenant’s breach of a covenant to surrender leased premises in a stipulated condition is limited to the reasonable costs of restoring the premises to that condition” … , absent a stipulation to such damages in the lease itself. Here, nothing in the relevant lease provisions provided for additional rent beyond the term of the lease as part of the damages for restoring the premises to the agreed upon condition. Nor is there a dispute that defendant tenant timely vacated the premises, and surrendered same to plaintiff landlord and that there were no rent arrears outstanding at the time of surrender. Thus, defendants would not be liable for use and occupancy, even if it were ultimately determined that tenant failed to comply with any removal obligations. 44-45 Broadway Leasing Co., LLC v 45th St. Hospitality Partners LLC, 2021 NY Slip Op 05452, First Dept 10-12-21

 

, ,

SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIMS; THE CONDUCT OCCURRED WHEN PLAINTIFF WAS NOT PHYSICALLY IN NEW YORK AND DID NOT HAVE ANY IMPACT ON THE TERMS, CONDITIONS OR EXTENT OF HER EMPLOYMENT WITHIN NEW YORK; THE FACTS WERE NOT DESCRIBED (FIRST DEPT).

​The First Department, reversing Supreme Court, determined the court did not have subject matter jurisdiction over the hostile work environment claims under the Human Rights Law. The facts were not explained. The conduct occurred when plaintiff was “physically situated outside of New York” and did not have any impact on the “terms, conditions or extent of her employment” within New York:

Supreme Court lacks subject matter jurisdiction over the Human Rights Law claims … . Defendants’ alleged conduct occurred while plaintiff was “physically situated outside of New York” … , and did not have “any impact on the terms, conditions or extent of her employment . . . within the boundaries of New York” … . “The fact that the alleged discriminatory acts . . . occurred in New York is insufficient to plead impact in New York” … . Jarusauskaite v Almod Diamonds, Ltd., 2021 NY Slip Op 05460, First Dept 10-12-21

 

A CONVERSION CAUSE OF ACTION FOR ITEMS LAWFULLY IN DEFENDANT’S POSSESSION WILL NOT LIE UNLESS PLAINTIFF FIRST DEMANDED THEIR RETURN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined some of plaintiff’s conversion allegations did not state a cause of action. Apparently plaintiff had created a website for defendant which included photographs, design and coding. Because the website, photographs, design and coding were lawfully in the possession of defendant, and plaintiff did not demand their return, conversion will not lie. Also, a conversion action cannot be based upon damages for breach of contract. However unpaid salary may be the subject of a conversion action:

… [D]efendants had lawful possession of the website that plaintiff had created for defendant The Front Row, as well as the photographs, design, and coding used on the website. Since plaintiff did not allege that she demanded return of those items, she cannot sustain her claim for conversion of the website, the design and coding for the website, and the photographs … . Plaintiff also cannot sustain the conversion claim for a $16,000 fee purportedly owed to her, since “an action for conversion cannot be validly maintained where damages are merely being sought for breach of contract” … .  Nonetheless, plaintiff has standing to assert a claim for conversion of an $8,000 monthly salary payment, because “[c]onversion is concerned with possession, not with title” … . Liegey v Gadeh, 2021 NY Slip Op 05461, First Dept 10-12-21

 

, ,

EVEN A UBIQUITOUS “DE MINIMUS” VIOLATION OF THE VEHICLE AND TRAFFIC LAW IS VALID JUSTIFICATION FOR A PRETEXTUAL TRAFFIC STOP; HERE THE LICENSE PLATE FRAME OBSCURED “GARDEN STATE” ON THE NEW JERSEY LICENSE PLATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the pretextual traffic stop was valid and defendant’s suppression motion should not have been granted on that ground. Apparently the license-plate frame obscured New Jersey’s nickname “Garden State” on the plate, which constitutes a violation of Vehicle and Traffic Law 402(1)(b):

The trial court’s concerns of permitting police officers to engage in pretextual traffic stops based on observations of trivial or technical traffic violations, which may lead to impermissible profiling, are noteworthy and merit consideration. However, once the court found that the officers reasonably believed that a traffic violation had been committed, this provided the required probable cause to stop the car … , regardless of whether the violation could be deemed de minimis, ubiquitous, unintentional, or caused by a third party such as a car dealer … . “Probable cause to believe that the Vehicle and Traffic Law has been violated provides an objectively reasonable basis for the police to stop a vehicle and . . . there is no exception for infractions that are subjectively characterized as ‘de minimis'” … . People v Dula, 2021 NY Slip Op 05465, First Dept 10-12-21

 

, ,

THIS PRODUCTS LIABILITY (DEFECTIVE DESIGN) ACTION AROSE FROM THE ROLLOVER OF A VEHICLE MADE BY DEFENDANT FORD; PLAINTIFF’S EXPERT’S AFFIDAVIT ALLEGING THE VEHICLE WAS UNSAFE AND PRONE TO ROLLOVERS WAS CONCLUSORY AND THEREFORE DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s expert’s conclusory affidavit alleging defendant’s vehicle was unsafe did not raise a question of fact in this products liability action stemming from the rollover of a vehicle made by defendant (Ford):

The defective design claim should have been dismissed because plaintiff failed to rebut defendant’s prima facie showing that the Ford van was not negligently designed. ‘Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis” whether the product was reasonably safe … . However, an expert cannot raise an issue of fact to defeat a motion for summary judgment when the opinion consists of only bare conclusory allegations of alleged defects or industry wide knowledge … . Here, plaintiffs’ expert’s assertions that the vehicle at issue was unsafe and prone to rollovers was unsupported by any data or calculations concerning the testing he purportedly performed, testing he described in the most conclusory of terms and general of statements … . Richards v Ford Motor Co., 2021 NY Slip Op 05469, First Dept 10-12-21

 

DEFENDANT BREACHED THE CONTRACT BY FAILING TO COMPLY WITH THE NOTICE-TO-CURE PROVISION BEFORE TERMINATING IT; THE REASON FOR TERMINATION, FAULTY WORK, WAS NOT EXEMPT FROM THE NOTICE-TO-CURE REQUIREMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined defendant breached the contract by failing to comply with the notice-to-cure provision before terminating it. Defendant general contractor (Borough) subcontracted with plaintiff to perform steel work at a residential development project. The subcontract required plaintiff to supply and install steel for excavation support and the frame of the building, as well as provide a full-time safety manager and procure permits for a crane:

… [P]laintiff alleges that defendant failed to comply with the notice-to-cure provision before terminating the contract, gives us the opportunity to address the strict nature of these types of provisions and the very rare instances when they can be ignored. Defendant general contractor terminated the steel work subcontract it had entered into with plaintiff based on what was essentially a claim that plaintiff provided faulty work. … [D]efendant was obligated to give plaintiff the 10-day notice to cure provided in the contract … [.] [F]aulty work does not fall within the very limited and rare circumstances when the provision can be dispensed with, namely, where the other party expressly repudiates the contract or abandons performance or where the breach is impossible to cure. * * *

Borough sent plaintiff a written “notice of termination” stating that the subcontract would be terminated in three days from the date of the letter and that plaintiff was in default by “failing to provide sufficient manpower [] [and] failing to meet the schedule, safety regulations and qualified workmanship for the Project.” The letter further stated that plaintiff “failed to respond or delayed response to requests for crane usage” and “has delayed the performance and completion of the work.” * * *

Nothing in the record supports the conclusion that the plaintiff repudiated or abandoned the contract or could not have commenced and continued correction of the steel frame and other alleged safety violations in the 10-day period following receipt of notice to cure. … [T]he alleged default, faulty steelwork, constitutes nothing more than defective performance, which is “the very situation to which the cure provision was intended to apply” … . East Empire Constr. Inc. v Borough Constr. Group LLC, 2021 NY Slip Op 05455, First Dept 10-12-2​1

 

,

THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the district attorney could not use the statutes-of-limitations tolls imposed by executive order because of the COVID pandemic to delay responses to FOIL requests:

By its terms, EO [Executive Order] 202.8 tolls legal “process[es] or proceeding[s] as prescribed by the procedural laws of the state” … . The FOIL framework and deadlines for agency responses to requests are not “prescribed by the procedural laws,” such as the CPLR and CPL. In the context of FOIL requests, legal “proceedings” ensue only when parties are unable to agree on a response to a request, and resort to the courts via CPLR article 78 proceedings. The conduct of article 78 proceedings are “prescribed by the procedural laws” of the CPLR. FOIL requests and responses are not so prescribed … .

Hence, respondents’ position that EO 202.8 tolls their obligation to respond to FOIL requests, is erroneous. Matter of Oustatcher v Clark, 2021 NY Slip Op 05295, First Dept 10-5-21

 

PLAINTIFF’S LADDER SHIFTED AS HE USED IT TO THROW TRASH INTO A DUMPSTER; THE ALLEGATION HE WAS TOLD NOT TO USE THAT DUMPSTER DID NOT RAISE A SOLE-PROXIMATE-CAUSE OR RECALCITRANT-EMPLOYEE DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was using a closed A-frame ladder propped up against a dumpster as threw debris into it when the ladder shifted and he fell. The defendants’ argument that plaintiff was told not to use that dumpster did not raise a sole-proximate-cause or a recalcitrant-employee defense:

“[I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . A worker’s injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … .

To the extent that defendants argue that plaintiff was recalcitrant in ignoring defendants’ alleged instructions not to use the dumpster, this is insufficient to raise an issue of fact. The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devises that were provided by the owner or employer. It has no application where, as here, no adequate safety devices were provided” … . An employer’s instructions “to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Plaku v 1622 Van Buren LLC, 2021 NY Slip Op 05311, First Dept 10-5-21​

 

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