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WITH RESPECT TO THE MANNER IN WHICH WORK IS PERFORMED, A GENERAL CONTRACTOR’S LIABILITY UNDER LABOR LAW 200 AND COMMON-LAW NEGLIGENCE STEMS FROM THE EXERCISE OF SUPERVISORY AUTHORITY; INFORMING THE WORKER OF WHAT WORK SHOULD BE DONE, MONITORING THE TIME AND QUALITY OF THE WORK, ENSURING COMPLIANCE WITH SAFETY REGULATIONS, AND HAVING THE AUTHORITY TO STOP WORK FOR SAFETY REASONS, DO NOT AMOUNT TO THE EXERCISE OF “SUPERVISORY AUTHORITY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant general contractor’s motion for summary judgment on the Labor Law 200 and common-law negligence causes of action should have been granted because defendant did not exercise supervisory authority over plaintiff’s work. The Fourth Department took pains to describe what does not constitute the exercise of supervisory authority:

… [T]he court erred in denying defendant’s motion with respect to the portions of plaintiff’s Labor Law § 200 and common-law negligence causes of action alleging negligence in the manner in which work was performed. It is well settled that ” ‘[w]here the alleged defect or dangerous condition arises from the contractor’s methods and the [defendant] exercises no supervisory control over the operation, no liability attaches to the [defendant] under the common law or under Labor Law § 200’ ” … .

Here, defendant established as a matter of law that it ” ‘did not actually direct or control’ ” the work [plaintiff was hired to do.] Contrary to plaintiff’s assertion, ” ‘[t]here is no direction or control if the [general contractor merely] informs the worker what work should be performed . . . [;] there is direction and control [only where the general contractor] specifies how that work should be performed’ ” … . “Similarly, ‘a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons’ ” … , or even the ” ‘monitoring and oversight of the timing and quality of the work’ ” … are insufficient to raise a triable issue of fact whether defendant exercised direction and control over the manner of plaintiff’s work. Szlapak v The L.C. Whitford, Co., Inc., 2025 NY Slip Op 05385, Fourth Dept 10-3-25

Practice Point: Informing a worker of what work is to be done, monitoring the time and quality of the work, ensuring compliance with safety regulations, having the authority to stop work for safety reasons, do not constitute the “the exercise of supervisory authority” such that a general contractor can be liable under Labor Law 200 and common-law negligence for the manner in which the work was done.

 

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PETITIONER’S SISTER ACTED AS AGENT FOR THEIR DECEASED MOTHER; PETITIONER’S STANDING TO SEEK AN ACCOUNTING PURSUANT TO THE GENERAL OBLIGATIONS LAW WAS NOT AFFECTED BY THE PRINCIPAL’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that petitioner had standing to seek an order pursuant to General Obligations Law 5-1510 directing the respondent, petitioner’s sister, to provide a copy of all bank statements, receipts, disbursements and transactions entered into by the respondent while acting as agent for the parties’ deceased mother. Contrary to the Surrogate’s ruling, the death of the parties’ mother did not deprive petitioner of standing to seek an accounting:

… [T]he death of decedent did not divest petitioner of standing pursuant to General Obligations Law § 5-1510 (3) to commence this special proceeding. Section 5-1510 (3) identifies, both directly and by reference to section 5-1505 (2) (a) (3), the parties that have standing to seek judicial intervention for the purpose of, among other things, compelling an accounting of all receipts, disbursements and transactions entered into by an agent on behalf of the principal … . Specifically, it provides that “[a] special proceeding may be commenced pursuant to [section 5-1510 (2)] by any person identified in [section 5-1505 (2) (a) (3)]”—which includes a personal representative of the estate of a deceased principal—as well as “the agent, the spouse, child or parent of the principal, the principal’s successor in interest, or any third party who may be required to accept a power of attorney” … . The legislature’s use of “any” and the disjunctive “or” in that statutory language evinces its intent to provide a list of equal but alternative petitioners … . Lange v Dixson, 2025 NY Slip Op 05352, Fourth Dept 10-3-25

Practice Point: Here petitioner’s sister acted as agent for their deceased mother. The death of the principal (the parties’ mother) did not affect petitioner’s standing to seek an accounting pursuant to the General Obligations Law.

 

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DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined he did not make an unequivocal request to represent himself. The two-justice dissent disagreed:

… [D]efendant did not unequivocally request to proceed pro se inasmuch as he only “ask[ed] to proceed pro se as an alternative to receiving new counsel,” thereby seeking to “leverage his right of self-representation in an attempt to compel the court to appoint another lawyer” … . Indeed, defendant repeatedly “made clear that he did not wish to proceed pro se,” and “couched [his requests] as a means to secure new counsel” … , including by stating that he had “no choice” but to represent himself if the court did not assign new counsel, and that he “d[id]n’t want to represent [him]self” but would do so if the court refused to appoint another attorney … . Defendant made no “standalone request to proceed pro se” … ; rather, all of his “requests to proceed pro se were made in the alternative; he sought to represent himself only because [the court] refused to replace . . . assigned counsel who had displeased him” … . A request to proceed pro se is equivocal where, as here, “it ‘does not reflect an affirmative desire for self-representation’ and instead shows that ‘self-representation was reserved as a final, conditional resort’ ” … . Inasmuch as defendant’s requests consisted of “equivocal and hesitant statements about proceeding pro se” … , the court’s duty to “make a searching inquiry . . . to determine whether [the] request[s] w[ere] knowing, voluntary, and intelligent” was not triggered … . People v Davis, 2025 NY Slip Op 04300, Fourth Dept 7-25-25

Practice Point: Consult this decision for a thorough discussion of what makes a defendant’s request to represent himself “unequivocal” (thereby by triggering the need for a searching inquiry by the judge into whether the request is knowing, voluntary and intelligent).

 

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A COURT CANNOT MANDATE A SPECIFIC RELIGIOUS EXERCISE FOR A CHILD (ORDERING THAT A CHILD ATTEND A SPECIFIC CHURCH FOR EXAMPLE); RATHER, THE COURT SHOULD DESIGNATE A PARENT TO HAVE DECISION-MAKING AUTHORITY OVER A CHILD’S RELIGIOUS EDUCATION AND EXCERCISE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined the order that a child “shall attend the Church of Jesus Christ of Latter-Day Saints …” was unconstitutional in that it mandated specific religious exercise:

… [T]he court’s order that the parties’ middle child “shall attend the Church of Jesus Christ of Latter-Day Saints every Sunday” except for six Sundays per year when the mother has access with the child, is unconstitutional insofar as it mandates specific religious exercise … . … [W]e remit the matter to Family Court to designate which parent will have decision-making authority for that child’s religious education and practice. Matter of Clark v Strassburg, 2025 NY Slip Op 04390, Fourth Dept 7-25-25

Practice Point: It is unconstitutional for a court, in the context of a Family Court proceeding, to order that a child attend a particular church. The court should designate a parent to have decision-making authority over a child’s religious education and practice.

 

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COUNTY COURT VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW BY FAILING TO NOTIFY DEFENDANT IT INTENDED TO ASSESS POINTS IN THE SORA RISK-LEVEL HEARING THAT WERE NOT RECOMMENDED BY THE BOARD OR PROPOSED BY THE PEOPLE; NEW HEARING ORDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing County Court and ordering a new SORA risk assessment hearing, determined County Court violated defendant’s right to due process of law by failing to notify defendant it intended to assess points that were not recommended by the Board of Examiners of Sex Offenders or proposed by the People. Although the defendant did not object to the assessment, the Fourth Department exercised its interest of justice jurisdiction and considered the appeal. People v Buckmaster, 2025 NY Slip Op 04378, Fourth Dept 7-25-25

Practice Point: Defendants are entitled to notice that the court intends to assess points in a SORA risk-level proceeding that were not recommended by the Board or proposed by the People. Failure to provide notice is a violation of due process.​

 

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PLAINTIFFS ALLEGED A TEENAGER WHO COMMITTED RACIALLY-MOTIVATED MASS MURDER WAS ADDICTED TO SOCIAL MEDIA CONTENT PRESENTING THE VIEW THAT WHITES ARE BEING REPLACED BY NON-WHITES; PLAINTIFFS ALLEGED THE SOCIAL MEDIA PLATFORMS WERE DEFECTIVELY DESIGNED TO BE ADDICTIVE; OVER A TWO-JUSTICE DISSENT, THE DEFENDANT SOCIAL MEDIA PLATFORMS WERE DEEMED IMMUNE FROM SUIT BASED UPON THIRD-PARTY CONTENT PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENCY ACT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Lindley, over a two-justice dissent, determined the actions against social media platforms alleging the platforms are defectively designed to be “addictive” such that a teenager’s addiction to racist content led him to commit a racially-motivated mass shooting, should have been dismissed:

These consolidated appeals arise from four separate actions commenced in response to the mass shooting on May 14, 2022 at a grocery store in a predominately Black neighborhood in Buffalo. The shooter, a teenager from the Southern Tier of New York, spent months planning the attack and was motivated by the Great Replacement Theory, which posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color. After driving more than 200 miles from his home to Buffalo, the shooter arrived at the store and opened fire on Black individuals in the parking lot and inside the store with a Bushmaster XM-15 semiautomatic rifle, killing 10 people and wounding three others. * * *

The social media defendants moved to dismiss the complaints against them for failure to state a cause of action (see CPLR 3211 [a] [7]), contending, inter alia, that they are immune from liability under section 230 of the Communications Decency Act (section 230) (see 47 USC § 230 [c] [1], [2]) and the First Amendment of the Federal Constitution, applicable to the states through the Fourteenth Amendment. * * *

… [I]t is undisputed that the social media defendants qualify as providers of interactive computer services. The dispositive question is whether plaintiffs seek to hold the social media defendants liable as publishers or speakers of information provided by other content providers. Based on our reading of the complaints, we conclude that plaintiffs seek to hold the social media defendants liable as publishers of third-party content. We further conclude that the content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content. It follows that plaintiffs’ tort causes of action against the social media defendants are barred by section 230. Patterson v Meta Platforms, Inc., 2025 NY Slip Op 04385, Fourth Dept 7-25-25

Practice Point: Consult this opinion for an in-depth discussion of whether social medial platforms can be liable for the actions of persons who become addicted to and are motivated to act by third-party social-media content. Here plaintiffs unsuccessfully argued that social media platforms are defectively designed using algorithms which foster addiction.

 

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CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).

The Fourth Department, affirming the convictions, explained the co-conspirator exception to the hearsay rule. A two-justice partial dissent argued there was insufficient evidence of defendant’s guilt of murder, attempted murder and assault as an accessory:

…[T]he court properly admitted in evidence the text messages sent by the female codefendant to defendant’s cell phone pursuant to the coconspirator exception to the hearsay rule. ” ‘A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule’ ” … . Such a declaration may be admitted only where the People have established a prima facie case of conspiracy ” ‘without recourse to the declarations [of that coconspirator]’ ” … . “The prima facie case of conspiracy does not need to be established before the coconspirator’s statements are admitted in evidence, so long as ‘the People independently establish a conspiracy by the close of their case’ ” … . People v Brown, 2025 NY Slip Op 04331, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the application of the co-conspirator exception to the hearsay rule.

 

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THE PROSECUTOR RECOMMENDED A LEVEL ONE RISK ASSESSMENT BUT THE JUDGE ASSESSED ADDITIONAL POINTS AT THE CONCLUSION OF THE HEARING RAISING THE RISK LEVEL TO TWO; BECAUSE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE FOR A DOWNWARD DEPARTURE, DEFENDANT IS ENTITLED TO A NEW HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter, determined defendant was not given an adequate opportunity to argue for a downward departure. The prosecutor had requested a level one risk assessment, but the judge assessed additional points and raised the risk level to two at the conclusion of the hearing:

Defendant further … the court abused its discretion in not granting a downward departure based on certain mitigating factors. At the SORA hearing, the People requested that defendant be designated a level one sex offender, but at the conclusion of the hearing, the court assessed additional points, rendering defendant a level two sex offender. Although defendant does not contend on appeal that the court violated his right to due process by sua sponte assessing additional points … , the court’s ruling did not afford defendant a meaningful opportunity to request a downward departure … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new hearing and risk level determination … . People v Kuhn, 2025 NY Slip Op 04434, Fourth Dept 7-25-25

Practice Point: Here the prosecutor recommended risk- level one but the judge, at the conclusion of the hearing, assessed additional points and raised the risk-level to two. The defendant should have been given the opportunity to argue for a downward departure in that circumstance. New hearing ordered.

 

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THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People:

… [T]he People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the alleged assault, inasmuch as they acted in good faith and with due diligence in an attempt to recover the report and footage. We reject that contention. * * *

… [D]espite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. We conclude under the circumstances presented here that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC [certificate of compliance] and, thus, the court properly determined that the initial COC was improper and struck the statement of readiness as illusory … .

From the dissent:

… [W]e agree with the majority’s conclusion that the certificate of compliance in this case was invalid … , we cannot agree with the majority’s further conclusion that the People could be charged with more than six months of speedy trial time while defendant’s omnibus motion remained pending. In our view, it cannot be disputed that the omnibus motion remained pending before Supreme Court, i.e., “under consideration” (CPL 30.30 [4] [a]), at least in part, during the relevant time frame inasmuch as the portion of the motion seeking to compel production of certain materials pertaining to a welfare check … was neither decided by the court nor withdrawn by defendant before defendant moved to dismiss the indictment. Because we conclude that defendant’s omnibus motion remained pending before the court until defendant moved to dismiss the indictment on speedy trial grounds, we further conclude that all of the time that elapsed during that period was excludable, and that the People could not be charged with more than six months of statutory speedy trial time as a result … . People v Ernst, 2025 NY Slip Op 04329, Fourth Dept 7-25-25

Practice Point: Consult this decision for a discussion of the meaning of “due diligence” in the context of the People’s response to discovery demands.

 

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THE JUDGE FAILED TO ADEQUATELY CONSIDER FATHER’S ARGUMENTS OPPOSING THE CHILD’S RELOCATION WITH MOTHER AND FAILED TO MAKE FINDINGS OF FACT IN SUPPORT OF THE AWARD OF SOLE CUSTODY TO MOTHER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court in this modification of custody proceeding and remitting the matter, determined the judge failed to consider father’s arguments opposing relocation with the mother, and failed to make findings of fact to support awarding sole custody to mother:

… [T]he court failed “to consider and give appropriate weight to all of the factors that may be relevant to the determination” … . Although the court properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts given, among other things, the mother’s family support system there, it failed to consider or evaluate the father’s reasons for opposing the relocation. Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country … . Indeed, the father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child. He also testified about an incident where the mother took the child’s passport from the father without his consent and in violation of the stipulated order. In short, the court failed to consider whether the father had “a good faith basis for opposing a requested move,” which “is a factor bearing on a relocation determination” … .

… [T]he court failed to make any factual findings to support the award of sole custody—both legal and physical—to the mother … . Effectively, the court awarded the mother sole custody of the child on the basis of its determination on the petition insofar as it sought permission to relocate the child. However, it is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child … . Crucially, as with its analysis on the issue of relocation, the court, in awarding the mother sole custody, did not consider the father’s stated concerns about the mother’s immigration status and whether she intended to remove the child from the country. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Eddaoudi v Obtenu, 2025 NY Slip Op 04430, Fourth Dept 7-25-25

Practice Point: Consult this decision for some insight into the findings an appellate court needs to consider an appeal in a modification of custody proceeding. A judge’s failure to consider a party’s argument and failure to make findings of fact in support of the award of custody renders an appellate review impossible.

 

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