You are here: / First Department

Tag Archive for: First Department

PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A BOTTLE CAP; PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 241(6) and 200 causes of action should not have been dismissed. Plaintiff alleged he stepped on a bottle cap which caused him to slip and fall:

The record presents an issue of fact as to whether the bottle cap that caused the injured plaintiff’s slip-and-fall accident on the construction site was part of an accumulation of debris within the meaning of Industrial Code (12 NYCRR) § 23-1.7(e), on which the Labor Law § 241(6) claim is predicated … .

[Defendant] failed to demonstrate, by submitting evidence of when the area was last cleaned or inspected before the injured plaintiff’s accident, that the Labor Law § 200 and negligence claims should be dismissed as against it … . Plaza presented only general testimony by its employees that the area was inspected daily and that debris was removed by laborers. Deleo v JPMorgan Chase & Co., 2021 NY Slip Op 06320, First Dept 11-16-21

 

THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defense motion to set aside the verdict based upon juror misconduct should have been granted. The trial court denied the motion after an extensive hearing. The jurors had seen an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death:

“CPL 330.30 (2) authorizes a court to set aside a verdict on the ground of juror misconduct that ‘may have affected a substantial right of the defendant’ and ‘was not known to the defendant prior to the rendition of the verdict.’ If juror misconduct of the kind outlined in CPL 330.30 (2) is found, the court is not to engage in a separate harmless error analysis. However, ‘[a]bsent a showing of prejudice to a substantial right,’ CPL 330.30 (2) is not implicated in the first place. As such, ‘[e]ach case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered'” … .

Here, the jurors observed an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death. The video did not appear in evidence and there was no testimony or mention of the video at trial. The video created a substantial risk of prejudicing the verdict as it permitted jurors to perceive the codefendant as having a propensity for violence, and then to perceive that same propensity to apply to defendant through a guilt-by-association chain of reasoning. People v Santana, 2021 NY Slip Op 06329, First Dept 11-16-21

 

, , ,

THE 1ST DEPARTMENT, OVERRULING PRECEDENT AND JOINING THE OTHER DEPARTMENTS, DETERMINED INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED IN A NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Scarpulla, determined municipal employees need not be named in a notice of claim. Plaintiff brought negligence, false arrest and false imprisonment causes of action against NYC alleging inhumane treatment by officers at Rikers Island:

The City moved to dismiss plaintiff’s complaint against the NYPD defendants, arguing that plaintiff failed to satisfy General Municipal Law § 50-e because he did not serve a notice of claim that named the NYPD defendants or John/Jane Doe placeholders … . * * *

Upon additional review of the reasoning of our own precedents, the reasoning of … relevant decisions of our sister departments, and reexamination of General Municipal Law § 50-e (2), we now join our sister departments in holding that § 50-e does not mandate the naming of individual municipal employees in a notice of claim. …

… [I]t is well settled that a notice of claim is sufficient so long as it includes enough information to enable the municipal defendant to investigate a plaintiff’s allegations, and “[n]othing more may be required” … . Providing the municipal defendant with the statutorily required elements of the nature of the claim, the time, place and manner in which the claim arose, and the alleged injury, without additionally naming the individual municipal employees involved, does not prevent the municipal defendant from adequately investigating the claim. Armed with the statutorily required information, the municipal defendant is in at least as good a position as the plaintiff to identify and interview the individual municipal employees involved in the claim. Wiggins v City of New York, 2021 NY Slip Op 06335, First Dept 11-16-21

 

, , , ,

THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Mazzarelli, determined: (1) the issue whether objections to child support rulings must be ruled on within 15 days (Family Court Act 439(a)) will be considered on appeal as an exception to the mootness doctrine; (2) under the Equal Access to Justice Act (EAJA) (CPLR 8600, et seq) mother-petitioner was entitled to attorney’s fees because her action served as a catalyst to this decision enforcing the 15-day rule:

The mother has established that this is not the first time in this case that the issue has arisen. Further, the issue is not likely to be resolved without application of the exception, because the Family Court can so easily obviate it by issuing a decision on the objections, albeit after the expiration of the 15 days. Courts have applied the exception under similar circumstances … . * * *

The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it … . * * *

Because the CAJ [Chief Administrative Judge, NYC Family Court] responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offers no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter should be remanded for an assessment of the mother’s attorneys’ fees under the State EAJA. Matter of Liu v Ruiz, 2021 NY Slip Op 06089, First Dept 11-9-21

 

THE FEDERAL DRUG CONVICTION WAS NOT THE EQUIVALENT OF A VIOLATION OF PENAL LAW 220.39 FOR SECOND-FELONY-OFFENDER PURPOSES; IT IS NOT CLEAR WHETHER THIS DECISION OVERRULED FIRST DEPARTMENT PRECEDENT, OR WHETHER A REVIEW OF THE FEDERAL ACCUSATORY INSTRUMENT WOULD HAVE DEMONSTRATED THE TWO OFFENSES WERE EQUIVALENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the federal drug conviction was not the equivalent of a violation of Penal Law 220.39, Therefore the federal conviction could not be the basis for second felony offender status. It is not clear whether this decision overruled other First Department decisions to the contrary, or whether a review of the federal accusatory instrument would demonstrate an equivalency:

Defendant was adjudicated a second felony offender based on a federal conviction for distribution and possession with intent to distribute cocaine under 21 USC § 841(a)(1). That provision is not equivalent to Penal Law § 220.39 because the federal crime has a broader knowledge element, requiring only that the defendant “knowingly or intentionally . . . possess with intent to . . . distribute . . . a controlled substance,” as opposed to having particular knowledge of the drug type actually possessed … . The cases in which this Court has upheld 21 USC § 841(a)(1) as the equivalent of a New York felony did not address this discrepancy in the breadth of the knowledge element; other equivalency issues were raised in those cases … . People v Campanioni, 2021 NY Slip Op 06105, First Dept 11-9-21

 

, , ,

THE EMAIL EXCHANGE BETWEEN THE ATTORNEYS IN THIS PERSONAL INJURY ACTION CONSTITUTED AN ENFORCEABLE SETTLEMENT WHICH WAS UNAFFECTED BY THE SUBSEQUENT GRANTING OF DEFENDANTS’ SUMMARY JUDGMENT MOTION (SECOND DEPT).

The First Department, reversing Supreme Court, determined the email exchange between attorneys constituted an enforceable settlement of the personal injury action which was unaffected by the subsequent granting of summary judgment to the defendants:

The settlement agreement was stated in an email communication in which plaintiffs’ counsel stated, “This is to confirm settlement in the sum of $275,000. Please send release language and parties to be released.” Later that day, plaintiffs’ counsel sent a follow-up email, stating, “Please confirm we are settled.” Sea Crest’s counsel responded, “Confirmed. I’ll have release information to you ASAP.” …

The emails, which reduced the settlement to a writing in accordance with CPLR 2104, were “subscribed” within the meaning of the statute, as the sender was identifiable and there was no contention that Sea Crest’s counsel did not send any of the emails intentionally … . Rawald v Dormitory Auth. of the State of N.Y., 2021 NY Slip Op 06109, First Dept 11-9-21

 

,

DEFENDANT WAS NOT SHOWN TO BE NEGLIGENT OR TO HAVE EXERCISED SUPERVISION AND CONTROL OVER THE INJURY-PRODUCING WORK; SCHEDULING AND COORDINATING WORK DOES NOT CONSTITUTE SUPERVISON AND CONTROL; THE COMMON-LAW INDEMNIFICATION AND CONTRIBUTION CLAIMS SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the common-law indemnification action against defendant Ergonomic should have been granted because Ergonomic was not shown to be negligent or to have exercised supervisory control over the injury-producing work. Portions of the floor were removed to access cables. Plaintiff alleged a leg of his ladder went into an area where the floor had been removed, causing him to fall. The First Department noted that coordinating and scheduling work does not rise to the level of supervision and control:

Ergonomic’s motion for summary judgment dismissing Owner Defendants’ third-party claims for common-law indemnification and contribution should have been granted. There was no evidence that Ergonomic was negligent or that it exercised actual supervision or control over the injury-producing work. Ergonomic did not perform any of the physical work and was not onsite at the time of the accident. To the extent it might have had authority to supervise the injury producing work, it never exercised such authority, but rather, had subcontracted such contractual duties to Quick, which actually directed and supervised the work … . The fact that Ergonomic scheduled and coordinated Quick’s and Atlas’s work is insufficient to give rise to liability, as the coordinating and scheduling of trades at work sites do not rise to the level of supervision and control necessary to impose liability under a negligence theory … . Balcazar v Commet 380, Inc., 2021 NY Slip Op 06030, First Dept 11-4-21

 

, ,

PLAINTIFF-RELATOR BROUGHT A QUI TAM ACTION (ON BEHALF OF THE GOVERNMENT) AGAINST A BANK ALLEGING VIOLATION OF THE STATE FINANCE LAW; THE QUI TAM ACTION WAS DISMISSED FOR FAILURE TO STATE A CLAIM; EVEN THOUGH THE CITY SETTLED WITH THE BANK IN A RELATED ACTION, PLAINTIFF-RELATOR WAS NOT ENTITLED TO A PERCENTAGE OF THE SETTLEMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined the plaintiff-relator, who brought a qui tam action against a bank alleging the bank violated the State Finance Law (re: foreign currency exchanges), was not entitled to a percentage of the related settlement reached by the bank and the city. The plaintiff-relator’s qui tam action had been dismissed for failure to state a claim which, pursuant to the terms of the relevant statute, precluded sharing in the settlement:

… [T]he City reached a $30 million settlement with defendants. The City made an offer of payment to relator. Relator rejected the offer, asserting that under the NYFCA, it was entitled to no less than 15% of the monies received. …

The NYFCA [New York False Claims Act] tracks the federal False Claims Act (31 USC § 3729 et seq.) (the Federal FCA). Accordingly, it is appropriate to look to federal law to interpret the NYFCA … . Federal authority holds that a relator who fails to state a viable claim under the Federal FCA is not entitled to recovery in an action brought by the government, even where that recovery stems from claims that overlap with the dismissed qui tam claims … . We are persuaded by this precedent and find that relator may not receive compensation under the NYFCA when its claims have been dismissed for failure to state a cause of action. Comptroller of the City of N.Y. v Bank of N.Y. Mellon Corp., 2021 NY Slip Op 06033, First Dept 11-4-21

 

,

IN COMPUTING THE AMOUNT OWED IN THIS FORECLOSURE ACTION, THE REFEREE RELIED ON AN AFFIDAVIT FROM A BANK EMPLOYEE WHICH DID NOT INCLUDE THE RELATED BUSINESS RECORDS; THE AFFIDAVIT THEREFORE WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s computation of the amount owed in this foreclosure action was not supported by the record. The affidavit of the bank’s employee was based on business records which were not produced, rendering the affidavit hearsay:

Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale, and granted that branch of the defendants’ cross motion which was to reject the referee’s report. The referee’s computations as to the amount due and owing to the plaintiff were not substantially supported by the record … . An affidavit of an assistant vice president of the plaintiff, which was submitted in support of the plaintiff’s motion to establish the amount due and owing, constituted inadmissible hearsay and lacked probative value because the business records purportedly relied upon in making the calculations were not produced … . Bank of Am., N.A. v Barton, 2021 NY Slip Op 05939, Second Dept 11-3-21

 

,

THE CONTRACT OF SALE INCLUDED THE PURCHASER’S AGREEMENT TO FORFEIT THE DOWN PAYMENT IF SHE DID NOT CLOSE ON THE AGREED DATE; THEREFORE THE SELLERS WERE ENTITLED TO THE DOWN PAYMENT; UNJUST ENRICHMENT CANNOT BE CLAIMED IN THE FACE OF A WRITTEN AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to close on the date agreed to in the contract of sale was a default entitling defendants to retain the down payment:

Defendants submitted a signed copy of the contract of sale, which contains all the material terms, and the amendment to the contract, pursuant to which plaintiff agreed that, in exchange for additional time to close on the purchase, she would cover defendants’ carrying costs and would waive any right to recovery of the down payment if she did not close on the sale by the agreed-to date. Plaintiff did not close by the required date, and the balance of the down payment was remitted to defendants. Plaintiff’s failure to close by the agreed-to date constitutes a default under the purchase agreement and the amendment thereto, and the default entitles defendants to retain the down payment as liquidated damages pursuant to paragraph 13.1 of the purchase agreement and paragraph 5 of the amendment … .

Similarly, a claim for unjust enrichment will not stand in the face of the written agreement … . An appeal to equity is equally unavailing, since the law is established that “a vendee who defaults on a real estate contract without lawful excuse cannot recover his or her down payment” … . Jennings v Silfen, 2021 NY Slip Op 05923, First Dept 10-28-21

 

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