May 21, 2026 Appellate Division, First Department Live Stream

Añadido: 2026-05-22

[00:16:01]of the Supreme Court.

[00:16:17]>> Good afternoon. Welcome to the Appal Division First Department. We have oral arguments for today, May 21. So, we have about 6 and a half hours of argument time requested. So, as usual, I'm going to ask that you request the time that you actually need to get out the salient points of your arguments. Please keep in mind, we have read your briefs and we are fully familiar with your arguments.

[00:16:39]People visal that matter is uh submitted. Matter of M children submitted the Phillips v Tishman construction >> 52 and five matter of 170 West End Avenue owners >> that matter submitted. Thank you.

[00:17:03]Michael G Michael Gross Diamonds vaken >> did you wish rebuttal? Well, you don't have anybody here for Am Amandi V Promise Home Care Agency >> submitted. Uh, people v Solar submitted.

[00:17:29]Martinez B 56 realy >> 424 Williams v Dia submitted people v Frank Diaz Paradis submitted Que v famous Sichuan New York submitted Denise v Dker A andV construct contracting There's no two four lepina v 340 East 198 street >> 525 people v Heather Rosen >> I'm sorry what' you say >> oh thought that's what you say >> 424 ravage v city of New York submitted first case for argument is to Phillips v Tishman construction ction >> whenever you're ready.

[00:18:35]>> May please the court. Brena Fitzpatrick, Council for the Appalance. Your honors, if I uh could focus my arguments today on the plaintiff's award of summon judgment under labor law section 241 subsection 6.

[00:18:44]>> Council, are you speaking into the mic?

[00:18:46]>> Sorry, I will do a better job, your honor.

[00:18:48]>> All right. Thank you. I appreciate your honor. The the facts in this case concern the reasonleness of the care and maintenance of the construction site here. That's what labor law section 241 sub6 under uh decisions from this court in Booth and temps specifically require.

[00:19:05]Now in this case plaintiff claims that he was walking down a set of exterior stairs when >> yes and so the photographs do show considerable buildup of ice and snow on the on the stairs >> on some of the stairs. Not some of the stairs not on the stairs that he was allegedly using at the time according to Mr. Verissimo. And again, this goes >> well, you say that not on the stairs that he was allegedly using at the time.

[00:19:24]He he stated that there was snow and ice on the stairs that he was ascending. He said he was ascending the staircase. He slipped and fell. I think he was carrying lumber or something of that nature. He slipped and fell on that snow and ice.

[00:19:37]>> Yes, Mr. Verissimo was right there and he turned around and he saw him and he disputes that there was the condition that Pliff alleged. Pliff claims that >> Yeah. Actually, Mr. Brismo said there was snow and ice on the corners of the steps.

[00:19:50]>> The corners of the steps again. Your honor, >> I don't know exactly what that means. So that was kind of vague, wasn't it?

[00:19:55]>> According to plaintiff, the steps were covered in snow. It was trampled. It was essentially >> Okay. So we have the plaintiff's testimony that the co that the stairs were covered in snow. And then we have the other gentleman's testimony that there was snow uh to on the corners. So that establishes that there is snow on the steps. Right.

[00:20:14]your your honor. Again, it goes to the reasonleness of the maintenance according to this court's decision in uh Booth. Now, again, I see your honor looking at me quizzically. Um >> about the I mean, you keep referring to the photographs, but they weren't really authenticated, were they?

[00:20:29]>> According to Mr. Verissimo, that there was no snow.

[00:20:33]>> No, I was asking about the photographs.

[00:20:35]They were not >> No, by by anyone. It seems like there were no there were a lot of photographs with a lot of snow, but it seemed like none of the photographs were exactly of where the plaintiff fell. There were parts pieces of it. It was very hard to figure it out. Yes, >> there was a lot of snow. I did see that >> in certain sections, but according to Mr. Pillis, snow removal had started that morning by Tishman laborers. Mr. Lee was out there in the morning of the incident inspecting the property. He noted it in his records. He said he testified that he saw snow removal being performed that morning. Mr. Verissimo testifi or attested that the steps that where this incident occurred, he saw them before the incident. He said there was nothing on it. They were clear. He had used the steps before. Yes, he >> said they were clean. I don't know what that means. He said they were clean, but also that they had snow on them. So >> that was after the incident. That was after the incident where he noticed some uh patches of snow and slush on the corners and on some of the treads. That was after the incident. Before >> and the treads would be significant, wouldn't it?

[00:21:37]>> Your honor, again, it goes to the reasonleness. Before the incident, Mr. Verissimo is attesting that there was no snow. They were clear. That >> he didn't say there was no snow. He said there was snow on the corners and on the track.

[00:21:49]>> That was after the incident.

[00:21:50]>> That's not the same as no snow.

[00:21:51]>> That's after the incident, your honor.

[00:21:53]before the incident. He said they were clear. He said he actually spreads salt on these steps.

[00:21:58]>> We don't know on what time he was referring to, do we?

[00:22:00]>> No, your honor, we don't. But we also don't know where Plainif claims that he actually slipped because he didn't know.

[00:22:06]So, what we have here is you have a question of fact as to whether there were reasonable steps taken to remove the snow from the steps. And I believe that we raised an issue of fact that should go to a jury. Under this court's decision in Booth and temps, this court held that there has to be some evidence that someone in the chain of the construction was not reasonable in mainten maintaining the property site or that they failed to remedy it in sufficient period of time.

[00:22:32]>> Council, I I I wonder before your time is up, could you address the second issue um relating to whether certain of the defendants were actually labor law defendants in this case?

[00:22:43]>> Sure. Um, according to the evidence in the record, pages 1496 to97, uh, a company called BPM 3HB owner LLC, they admitted that they own the property. The other parties that were identified as somehow owners, actually either developers or they really had no authority to control construction at the site. And so when you have a party admitting that they're the owner, the rest of the parties really weren't a part.

[00:23:14]>> I thought the Monahan, I'm I know I'm pronouncing incorrectly. I thought they had approval rights over major decisions, including uh the selection of the major trade contractors, etc. Uh, your honor, according to pages 9993 to 994, 9998 of of the record, the morning group had nothing to do with the actual construction of the work and uh they were not involved in any of the hiring or the firing of any subcontractors or contractors and they had no ability to impose safety practices.

[00:23:42]>> But they were also the property owners representative in the contract with Tishman's Construction.

[00:23:48]>> But why doesn't that give them a significant role in this process?

[00:23:51]>> Because your honor, they just didn't exercise any control. They didn't have it. We have the part party that is the fee owner.

[00:23:56]>> They signed the contract. Don't you think that's of some relevance?

[00:23:59]>> It's as relevant as the owner representing the owner, but they had no authority. You have the owner here on the site.

[00:24:06]>> But again, Moahan Group owned 75% and they did have approval rights and made major decisions. And we've stated that where the an entity has an interest in the property and fulfills the role of making those major decisions that they can be determined they that that they would be considered to be owners and therefore proper labor law defendants.

[00:24:33]>> Your honor, they didn't exercise and they didn't h according to the testimony they didn't have the authority to control any of the subcontract. Well, I I thought the court of appeals indicated that an owner isn't limited to the title holder of the property. Um, as long as it also encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his or her benefit. So, I didn't think it was only that they controlled the workers on the site. It was a it's a larger um >> again I think subset, >> right? And that was my point in terms of the fact that they owned 75% of the joint venture and had approval rights.

[00:25:17]But you have time on rebuttal.

[00:25:19]>> Thank you.

[00:25:24]>> Good afternoon. Your honor is Brian Isaac. I represent the plaint of respondent. If I can, your honors, I I if you look at the affid >> also, can I ask you a question?

[00:25:33]>> Sure.

[00:25:34]>> So plaintiff's testimony is unrebuted, correct? that he fell based on the staircase that he was directed to use.

[00:25:42]Yes. Because there was snow.

[00:25:43]>> Correct.

[00:25:43]>> And the defendants didn't produce any witnesses to say that they saw the accident. Correct.

[00:25:50]>> That's correct.

[00:25:51]>> The closest witness that they produced was Verizimo. Am I saying that incorrect?

[00:25:56]>> You're saying it correctly.

[00:25:58]>> And he said he didn't see the accident.

[00:26:00]>> That's correct.

[00:26:01]>> He heard it.

[00:26:02]>> He heard the accident >> and he turned and saw plaintiff on the ground.

[00:26:06]>> Correct. 2766.

[00:26:08]>> And he also confirmed that there was snow and ice on the stairs. Did I get all that right?

[00:26:13]>> 100%. Paragraph 4, I'm quoting. The only possible slippery substance on the stairs would be the protective strips placed on the edge of the treads or the very minor accumulation of snow on the corner of the stairs. The snow was a slushy consistency located on the corners of some steps. Also, if I can, the defense witnesses specifically went there after the scene of the accident and said there was snow and there's no dispute in accordance with the regulation because the regulation is kind of ownorous, but it says what it says. You're not supposed to work when there's snow there. 231.7D is very clear. It says, "Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition." And then the second sentence, even worse. Ice, snow, water, grease, and any other foreign substance which may cause slippery footing shall be removed, sanded, or covered to provide safe footing. council. So, how do you respond to your friend's argument regarding the reasonleness of it all that he went, he saw that the snow was clean. How do you respond to that?

[00:27:33]>> It wasn't cleaned at the time and he was right there. Listen, I will never say that Rudo didn't say what Mr. Fitzpatrick said. It said he's a terrific lawyer. It's not strict liability. Okay? But anyone in the chain is what they said. My client's part of the chain. Mr. I'm gonna screw up his name. Mr. Verisimo. He's part of the chain. And the plane said it was snowing when it was there. So that's good enough. George Kick, I had a very tough time understanding those documents. I wasn't me, too.

[00:28:02]>> I wasn't in the commercial part like you were, but I I can actually help you.

[00:28:06]>> Thank you.

[00:28:08]>> Look at 877 of the record and 1004 and 105 of the record. That's Mr. Cooper's testimony about who was there. And Mr. >> Can you read those numbers again?

[00:28:18]>> Yeah. 877 1004 and 1005.

[00:28:24]I'll just quickly, this is what Cooper said. Quote, "The only people who ever showed up to any meeting at this project and ran the whole project was me and the Moahan group that's dealing with Boston Properties." Then he says on the same page, Boston Properties was quote responsible for managing Tishman Construction and the design team on schedule and budget for executing the construction portion of the project. And finally, Mr. Moyan, I think it was 1004 and 1005, confirmed that his group and Boston Properties were the only entities representing the owners on the day of the accident. One last thing, and I'll sit down if you have no questions. If you look at 8:31 of the record, this is the accident report, completely consistent with my client's testimony.

[00:29:14]And if you go to the second page, 8:32, this is Mr. Lee. He wrote it. Upon inspection of the location, observe the staircase salted with minor accumulation of snow on various treads, not just the sides, on treads right underneath.

[00:29:31]Recommendations complete removal of snow and ice on each tread. No question of fact here. The trial court got it right.

[00:29:38]Thanks for listening to me.

[00:29:39]>> Thank you.

[00:29:43]>> Just to adjust your honor's point, um, in this court in Booth, there was testimony and evidence that it was snowing seven hours before the accident and it was snowed continuously several hours after workers got to that site.

[00:29:57]Pliff slipped and fell on snow and ice.

[00:29:59]This court held that there had to be evidence that someone in the chain of construction didn't reasonably maintain the property. Here we've presented at the very least a question of fact as to whether defendants reasonably maintain the property. There were laborers out there in the morning of the incident clearing the clearing the uh site, shoveling snow, putting down salt.

[00:30:21]According to Mr. Verisimo before the incident, not after the incident when he saw patches of snow or slush before the incident. He used it. He said he salted those steps. He also said that it was clear that there were no hazards as he was walking up and down these steps numerous times before the accident. I'm not saying I went on uh summary judgement or even at trial, but it should go to the jury as to whether defendants reasonably maintain the property. 241 sub6, especially when it comes to 1.7D, is a hybrid statue.

[00:30:53]>> You haven't rebutted his statement that he slipped on snow and ice. It seems to me that that implies that somebody hadn't that the stairs hadn't been adequately cleaned or he wouldn't have slipped on snow and ice >> or it was that it was cleared and Mr. Verisimo had put down salt and then after that because maybe it was continuing to snow, maybe other workers had walked by and uh patches had fall patches of snow had accumulated. But the fact is there has >> this is a condition that has to be remedied in real time, not once a day.

[00:31:24]>> Yes, your honor. And there is no evidence whatsoever as to how long this condition existed. And that's not my burden on a summary judge motion. That's pliff's burden. This court specifically >> burden is to show why he fell and he showed that he said he fell because of the snow and ice.

[00:31:38]>> He has to show that there was not reasonable maintenance of the property and simply because the accident happened that doesn't mean plane is entitled to summary judgement. Again, there was removal activities going on that morning. Mr. Lee said that. Mr. Lee put it in his notes. Mr. Verismo said it was clear before the incident.

[00:31:55]>> Whether something happened after that is a question of fact that should be go to the jury as to whether the property was reasonably maintained.

[00:32:01]>> Thank you. Thank you both. Gross Diamonds v Beckman.

[00:32:16]Yes. May please the court. Mark Hines for the appellent Michael Gross Diamond.

[00:32:20]This was a uh business records and trade customs case. Uh credibility of course is always an issue to some degree, but this was governed uh by the customs and practices of the diamond industry. Well, it's it's governed by the customs and practice, but still one has to prove that certain things happened. And given that the trial judge, based on the evidence he heard, found that your client was not at all credible, isn't that an appropriate thing for him to consider in deciding whether the proof was adequate?

[00:32:55]>> Two things about that. One is we we urge that the credibility findings were conclusory and not specific and meanwhile is plainly contradicted by uh the trial evidence. If if I can just go through the items in in claim number one that concerns eight memos the defendant did not dis defendants did not dispute at all three of them 5064 51. The question was whether those memos had been paid or not or whether what happened with those and based on the credibility finding that the trial judge made essentially he concluded that there was nothing to those arguments.

[00:33:30]>> Well, but there weren't arguments. The defendants admitted three of the memos and the uh the fourth of the group of eight. They they just said that that and this is not doesn't have anything to do with the plaintiff's credibility. The defense of payment is is the burden of the defendant. Uh but but >> except that the it's the plaintiff's burden to that to establish that he wasn't paid. And if he was if the court found him not believable on that issue, then there's no claim. the the the plaintiff presented the original memoranda as a matter and this and actually his trial courts have determined and it's well established in this industry that if I have the original memo that then that's sufficient proof of the claim in and of itself on its face. There's other ones that the defendant said were forged, but of the four that I wanted to start with, there was no defendant didn't say they were forgeries and we had the original memos in in uh before the trial judge.

[00:34:28]It's under under the expert the unrebuted expert testimony of our diamond industry expert and and really the testimony of both parties. When you have the original memo, the that's that's all you need to prove the case.

[00:34:41]If if I have the memo, then then you must have the diamonds. And just saying, "Hey, I paid for it," is utterly in our in our view utterly meaningless as a matter of law because the least you have to do is come in with some proof of payment like a canceled check or something. But the the non-payment is not proved by what my client says. The non the non-payment is proved by the authenticated memorandum in and of itself. That's all that's all you ever get in these transactions. I hand you the diamonds and you give me a piece of paper.

[00:35:11]>> What about what effect does the prior decision from this court uh or the affirmments from this court in the Blue River Gems case have to do with all of this? How does that affect?

[00:35:24]>> It's not inconsistent in any way. In fact, our our arguments are totally harmonious with that. With respect to claim number two, in in the underlying Blue River case, the testimony was, and it was consistent with the record here, that that Michael Gross in payment for the necklace gave Mr. Vakn three memos of equal value. All right. this court and and the lower court rejected that and said this was not not that it didn't happen but that that was not an irregular course of business because it was a transaction on account of an antecedent debt. That's the finding. All we're seeking to do is to enforce that antecedent debt separately for the very reason that those memos, those three memos totaling $339,000 didn't pay for the necklace. Right?

[00:36:10]That's the court's finding. It was affirmed. We're not quarreling with that for one second. the defendant still has the goods. He never paid for them. He didn't say anything other than uh these memos, quote, evidenced previous consignments of unrelated jewelry between SVV and MGD. And he attached what he said were true copies of the memos. Fine. These memos didn't pay for the necklace, but but he there's no no he didn't say and there's no evidence in the record that those those memos were otherwise taken care of. So if they didn't if they didn't pay for the necklace, then you still owe me those goods or you still owe me payment on the memos. My client can't lose.

[00:36:51]>> Thank you, council.

[00:36:52]>> Thank you, >> Martinez.

[00:36:53]>> So we urge reversal. Thank you, honor.

[00:36:55]>> Martinez be 56 guilty.

[00:37:08]>> Good afternoon and may court. I'm Richard Ashnalt. from the law offices of Kevin Westerman here on behalf of the defendant appellent Puka Construction Corp.

[00:37:20]Um this is obviously a case where we're here on an accident actually coincidentally enough that happened 5 years ago today. Um and the only issue that is before the court here is really with regard to the indemnity agreement and the 5322.1 uh arguments with regard to the general obligations law. The where this case becomes somewhat confusing is where who the players were working for. Um, it's really kind of up in the air whether they work for Glenwood Management or York Avenue Construction, the uh the people who were actually doing the construction work, uh, Rocco who was their the the foreman who was taking care of the preparation for the room for Puka's work, which was going to come in after the fact. uh Plainif and his coworker, they were >> I think the coworker said it used to be York and then it was Glenwood that he wasn't really sure which one.

[00:38:26]>> It's it's really confusing. My understanding of his testimony was his first few paychecks came from York and then they came from Glenwood changed to Glenwood, >> right? Uh Rocco threw out.

[00:38:38]>> And what was York and Glenwood's relationship to um 56 realy elements?

[00:38:46]>> Okay. Lenwood was 56 Realies managing agent, property manager.

[00:38:51]>> Um, and there there were no employees or office space or anything like that of anybody from 56 as far as anybody could tell.

[00:39:00]>> Uh, the there was no testimony about any employees or any office space or anything for 56. So Glennwood is really the the actor uh on behalf of uh 56 realy and then York was sometimes described as the the construction arm of Glenwood. So you know that that's why people were somewhat confused as to whether they worked for York or for Glen. So it it seems that at the Supreme Court level that nobody made any arguments about agency which seems to have come up now at at that time it was an alter ego argument then it turned into an agency argument.

[00:39:44]>> Well I I think with all due respect to the attorney who was arguing below they were trying to make more of the argument than they needed to make. It's really an agency argument under 5322.1.

[00:39:56]the same argument that the the uh negligence of Glenwood andor York would be attributable to 50 56 realy uh on an agency theory or on uh on an alter ego theory and that would bar the uh the full enforcement of the indemnity agreement under 5322 because >> so we're going to have to figure that out before we can determine the indemnification you uh resolve this issue on indemnification.

[00:40:29]>> Well, correct is your position.

[00:40:31]>> In in other right in other words, the agent the the negligence of the agent is going to be attributed attributed to the principal and that is something that is barred by 5322.1 as well.

[00:40:43]>> So, Colanovic B56 realy does that assist us in any way in our analysis? I I I don't think it does as much uh because the that was more of an alter ego argument uh made in a different case.

[00:40:58]But I think really here what we're what the court should be focusing on is the agency between these uh between these entities among these three entities really uh and whether those whether the negligence of the two nonparties can be attributed to 56 as the owner here. And interestingly enough, the identity agreement itself was entered into between Glenwood and Puka. Glennwood was the agent for for the it was actually kind of identified as the owner Capital O uh and not 56 realy, but it seems that they're trying to do it as an agent.

[00:41:34]>> They're the property manager for 56.

[00:41:37]>> That's correct.

[00:41:38]>> Thank you. You have time on your >> Thank you.

[00:41:46]May I please court Glenn Kaminska with the firm moral ling the party council for their respondents and I respectfully ask this court to affirm the decision of justice heaggler agency I'm going to jump there because this is an issue raised for the first time on appeal record 1611 to 1617 is Puka's opposition to our motion for summary judgement the word agent appears exactly zero times in that opposition. The argument of agency does not exist in the transcript that starts at 1734 of the record. This is an argument created in whole cloth here on appeal and the alter ego which was the basis of the opposition and we took as the basis of the appeal absolutely abandoned by Puka in the reply brief to go with agency. It cannot be heard by this court. They don't get a redo here because it's not one of those circumstances where it can not be avoided on the facts. In fact, Puka doesn't even supply any facts to show how York is somehow the agent of 56.

[00:42:59]The argument below was that Glenwood was the alter ego of 56. Justice Haggler properly decided that there really was no proof that that was true.

[00:43:10]uh the K Novvic case uh decided you know 10 years a decade before that there was no alter ego relationship between those parties. Uh Guida's deposition transcript and affirmation here shows even further distance that they don't even share that 56 doesn't even have an office. She talks about that these are all separate entities that they act separately. They have separate tax returns and we know that York is the party listed for the workers compensation. So there's >> who entered into the agreement with Puka?

[00:43:50]>> I'm sorry. Say >> who entered into the agreement with Puka? the agreement with Puka was entered into by the tenant uh which the uh health uh whatever uh >> is that wasn't Glenwood authority to that with Puka?

[00:44:06]>> No, >> no, no. I I believe that unless I'm mistaken. Uh which I could be. It's 1020 of the record is the indemnity clause.

[00:44:15]Uh and so I will say that the owner and Glenwood are listed separately as indemnities in that clause. And I think I should briefly touch on this Butler case because uh there's some confusion on this Butler case and any applicability it has here. It does not have any applicability here. What's different about the Butler case is that the GC there hunt and the court says it is the sole indemnity under that agreement. So there's nothing about the building defendants having uh that because Hunt uh potentially negligent in that Butler case that the building defendants don't get indemnity. They were never going to get indemnity because Hunt was the sole indemnity uh in that case. Um, so less court has any questions on alter ego on agency. Uh, I'm happy to rest on our >> So your position is that there's nothing in excuse me that there um is no issue of fact as to whether Glenwood and York were acting as agents.

[00:45:17]>> There is absolutely no issue of fact.

[00:45:20]First of all, it's a issue raised the first time on appeal and can't be heard.

[00:45:23]But even if the court goes beyond that, there is no issue of fact that 56 and York have any type of relationship agency relationship. There's nothing in the record. And that's what he would need to prove that the person that identified as the employer in the workers comp, the person that Guida identifies as a separate entity, York, they have no relationship with 56 other than Glenwood manages the property, hires York to do.

[00:45:54]>> So, aren't they all named on the same insurance policy? All three.

[00:45:57]>> Yes, they absolutely are. Which is >> And Glennwood manages the payroll for both the owner and York. Yes. Yes. Which is what a management property might do.

[00:46:09]That doesn't make them >> as we said on page 19 of our brief inciting the Samuel case mere relationship is not sufficient here.

[00:46:18]>> I does I mean is an ar can't the argument be made that that goes beyond a relationship in terms of what in fact they are responsible and what in fact would they responsible for and what in fact they are doing?

[00:46:33]No, I Yeah, I would say respectfully with what Miss Guida testifies to, no.

[00:46:40]And importantly, again, that at best you're adding Glenwood to York, but you're not adding them to 56, who's the party that's been actually sued here.

[00:46:50]>> But Gita, I'm sorry.

[00:46:52]>> No, it's okay. I guided testified that Carol Pman was the managing partner of the owner and president or managing partner of Glenwood. So there's Glenwood with the owner. Again, >> it's uncommon for people to have common ownership interest. It doesn't mean that they're the same entity or that they're acting as agents for one or the other.

[00:47:14]You can have >> that relationship. This court found that same relationship in Kolivic.

[00:47:20]>> Isn't that an issue at this point of the of the litigation since nobody can really answer the questions of who they are? Isn't that an issue of fact that we have to deal with?

[00:47:30]>> That's right.

[00:47:31]>> No. Respectfully, no. Uh maybe if it was raised below, maybe. But on the issues arguments, your argument is that it wasn't raised below and therefore it shouldn't be considered. And then your second argument is that if we consider it, then we have to find that there are no issues of fact based upon the evidence submitted. And based upon the evidence, there's no way to connect the person they're trying to find liable, Rocco, Rocky, Clemente, all the same person who works for York, who's identified as the employer, and connecting them in any way to 56.

[00:48:05]>> You might connect them to Glenwood, but you can't connect them to 56.

[00:48:08]>> I understand. Thank you.

[00:48:12]>> Uh just I'd like to raise a couple of things. If you actually look at the testimony about who Mr. Clemente was working for. He makes it very clear that he was working for uh for Glenwood and not for York. He doesn't even really know who York is. It doesn't seem from his testimony. Um PL is the same way. Plus testimony was very clear that he was working for Glenwood and he worked for Glenwood. I think Mr. Clemente said he worked for Glenwood for 29 years or something like that. We worked for them for a long time.

[00:48:48]>> Who had the who entered into the contract with Puka?

[00:48:52]>> That was the other thing that I was going to raise. Um the the actual contract to do the work was with the tenant, but associated with that there was the indemnity agreement that was entered into between Puka and Glenwood.

[00:49:08]>> Right. That's what I was referring to.

[00:49:10]>> Right. So there was a there was a proposal that Glenwood had sent to the tenant. uh that was not Glenwood, but then the indemnification agreement was between Glenwood, >> right? Because the tenant would have to show I mean the tenant would have to make sure that the the uh the the the the residents, the co-op or whatever was indemnified for any work that was >> right for the they were going to identify the landlord for.

[00:49:33]>> Exactly. Right.

[00:49:33]>> And and that was entered into with with Glenwood. Uh as far as being this being raised for the first time on appeal, the argument is that 5322.1 bars an agreement to indemnify uh a party for their own negligence. Whether you term that in phrase in whether you phrase that in terms of an alter ego or an indemnity argument, it's really the same argument. We're really talking about the same thing here is alter agency. Is that what you mean?

[00:50:01]>> I'm sorry.

[00:50:02]>> You mean alter ego or agency?

[00:50:04]>> Correct. Those are it's really the same argument one way or the other. And actually the bar is significantly higher on the on the alter ego argument than it is on the agency argument.

[00:50:13]>> And there's sufficient um evidence to to um so that you would be able to argue either one, right? There's sufficient evidence that you would be able to argue either one because the evidence would go both to alto ego as well as to agency.

[00:50:29]It it would go to either one, but certainly lean uh a lot more in favor of the agency argument than the alter ego, which is a higher bar.

[00:50:38]>> Thank you.

[00:50:39]>> Thank you, >> Denise V. Uh Dyker.

[00:50:54]>> Yes.

[00:50:57]May please the court Andrew Bandini of moral linga party for appellent Dyker.

[00:51:02]Uh Dyker respectfully requests that this court reverse the trial court's denial of Dyker's motion for summary judgement.

[00:51:08]First Dyker cannot be found liable for plaintiff's accident because plaintiff is unable to identify the cause of her accident or any negligent act of Dyker.

[00:51:17]Uh plaintiff relies purely on speculation. Well, wait. She I mean she had I don't think that that's exactly accur exactly accurate. She may not recall exactly how it happened, but she did say that somebody who she found out was an employer employee of Dker was wheeling on an eight cart frame uh an eight cart uh A-frame cart a bunch of drywall right through the lobby of a building during a busy time.

[00:51:48]And they came into contact with each other. I I mean she does know that. And so >> and she had the taste of whatever from the gypson or whatever.

[00:51:56]>> Gypson, right?

[00:51:57]>> The gypson in her mouth afterwards. So I I go ahead. I'm sorry.

[00:52:01]>> Yes, your honors. Although she collided with the cart and Dyker is not disputing that she collided with the cart. There is no evidence in the record that the cart was pushed into her due to any negligent act. Um, it is also true that the cart was moving through the lobby, but we don't know if it was moving at the time plaintiff collided.

[00:52:20]>> Yeah, but it's your motion for summary judgement. That's what I could not understand. You're making this motion.

[00:52:25]So, why again are there not issues of fact as to exactly what occurred? I mean, you're stating that she collided with the cart. I mean, we really don't know exactly what occurred, right?

[00:52:37]>> Your honor, there is ultimately the record has been fully developed at this point. the note of issue has been filed and there's there's no evidence in the record. H >> how do you show that you're how do you show that you're completely free of negligence? Again, as as my colleague said, if you're making the motion for summary judgement, then the burden on you is to establish summary judgment uh you know that that you're free from negligence. Otherwise, we can't grant you summary judgement.

[00:53:06]>> There's no evidence that the cart was moving at the time. And >> well, she testifies that it was. So that's that's evidence.

[00:53:13]>> Well, your honor, she doesn't testify that the cart was moving at the time she collided with it. She testified that she tasted gypsum, that she collided with the cart, that her um that the cart knocked the lights out of her, but that doesn't um that doesn't indicate that the cart was actually moving at the time that she collided with the cart. It sounds like you're arguing against her motion for summary judgement which she didn't make. And you established that there are issues of fact which would preclude a grant of summary judgement for her. But I don't see how that requires that we then grant summary judgement to you. You haven't established how it happened. So without establishing how it happened, how do you get to summary judgement?

[00:53:56]>> Your honor, we are Dker's position is that there's simply just no evidence in the record that we committed any negligent act here.

[00:54:05]>> Thank you. Thank you.

[00:54:08]>> Aspina V340 East 198.

[00:54:22]>> Whenever you're ready. Good afternoon, your honors. May I please the court Lily Pollock from the Price Law Firm for the Plaintiff appellants. This appeal presents a narrow but important question of statutory interpretation, which is can an apartment become luxury deregulated on the exact day that the legislature abolish luxury deregulation where the vacancy lease upon which the deregulation is based on did not commence until the same day, the day the HSDPA was enacted.

[00:54:47]>> And what did the um motion court decide?

[00:54:50]>> The motion court decided that the apartment was deregulated prior to June 14th, 2019. However, that decision was based on a premise that is not supported by the law or DHCO's own interpretation of the statute. The decision was based on the expiration of the previous the last rent stabilized lease, not the commencement of the first purported free market >> and that's what the statute says it's supposed to be, right? Okay, it the IIS the improvements anything the vacancy increases if they come into effect they come into they're effective on the commencement date of the next vacation >> which was in this case >> which was June 14th 201 >> unfortunately for the landlord right >> correct it's it's a bad day for the landlord >> it's unfortunate timing but the legislature do a very >> commencement of the lease does not mean the execution date of the lease >> no it is very different and the DHTR guidance the the operational bulletins and even their frequently asked questions online all state that it is the commencement date of the lease.

[00:55:47]There's even an example on the DHCR's website have a bulletin. Was there a bulletin also that was sent?

[00:55:52]>> Yes, there's actually two. It's the operational bulletin 2016-1 and I think 2024-2 and the frequently asked questions about those bulletins on their website give a perfect example where um an apartment is vacant. The landlord say at some point in July of 2024 did renovations. In August of 2024, a lease was signed and the lease was to to commence on a or September 1, 2024. Those II become effective at the commencement date on September 1st, 2024. applying that here it's very clear any improvements that were made any vacancy increases that could have been taken would not have gone into effect until June 14th 20 2019 which again as your honor mentioned unfortunate that it is the exact date of the commencement of the statute >> the effective date of the statute sorry right the effective correct >> we have to be care so we're talking about the commencement date of the lease and the effective date of the statute correct which happen to coincide here it does sound like a law school hypothetical >> absolutely yes but It was the legislature was very clear. It was to be effective immediately, not anything prior to it. Anything prior to June 19th, 2019, >> right, >> Jud 14th, apologies, 2019 is regulated.

[00:57:06]the the mechanism for deregulating an apartment ceased to exist at the time that this lease commenced and therefore the lower court was was incorrect in holding that the lease or that the IAI's became effective prior to June 19th, 2019 and thus the department was deregulated prior to this new lease even starting.

[00:57:27]>> Thank you.

[00:57:28]>> Thank you.

[00:57:32]>> Good afternoon, your honor. Um, Jordy Fernandez for Smith Levenson, uh, the respondent in this case. Um, defendant is asking the court to affirm the lower court's finding and remit the matter back to the lower court for a final disposition on the merits. This case involves three facts. A deregulated lease was signed on May 31st, 2019. The individual apartment improvements were all completed before the signing of that lease on May 31st, 2019.

[00:58:01]>> But does that really matter? I mean under the under the statute as it's written >> it it does matter. It matters exactly because of the way the statute is written and it matters exactly because the statute is written under the rent act of 2015 um under the house the HSTPA any unit >> was written >> excuse me I'm sorry >> you're saying it that that HISPA doesn't apply to it.

[00:58:25]>> I'm sorry >> you're saying are you saying that the 2019 legislation does not apply to the stat to the lease? Uh, I I am saying that this apartment was deregulated before the 2019 statute went into effect. And that has always >> claiming it was deregulated.

[00:58:42]>> I'm sorry.

[00:58:43]>> When do you claim it was deregulated?

[00:58:45]>> By the time the lease was signed on May 31st, 2019, it was deregulated.

[00:58:50]>> How >> it was deregulated this way. The 2019 act specifically has the cleanup portion of the 2019 act says that any unit that was lawfully deregulated prior to June 14.

[00:59:01]>> But I'm asking you how it was deregulated.

[00:59:03]>> It was deregulated through the individual apartment approvement to $64,000 that was done prior to the signing of the lease on May on May 31st, 2019. The 2015 Rent Act, which is the applicable act here, clearly says clearly says that that the apartment can be deregulated at any time on or after the effective date of the Rent Act of 2015. That is actually the statutory scheme that was in place before June 14th of 2019. And that language in the 2015 act follows the same language that was that that it echoes the language of the 2011 act and again the 1997 rent reform act. The 1997 rent >> said the apartment was deregulated. Do you mean to say that all the statutory criteria for deregulation was met?

[00:59:54]>> That's correct. Before May 31st >> then that's a condition that has to happen in the future, right? That's the expiration of the lease and the commencement of the new one.

[01:00:01]>> Well well the lease was expired. This was a vacant apartment when when so the lease was expired. The lease term commencing is not a requirement and that is that's what the appellet is asking his court to read in. But that is not a requirement. That's never been a requirement. That's inconsistent with the case law. Uh that's inconsistent with what with Altman says in the >> your understanding your reading of the statute when then would the the um the destabilization go into effect? de destabilization of the apartment. Yes.

[01:00:35]When the work was completed to take the apartment above the threshold the the >> So the work is completed and when what year is that?

[01:00:42]>> May 31st 2019. It it would have happened in by May 31st in 2019. All the work in this case was completed by the time the lease was signed on May 31st of 2019.

[01:00:54]>> I'm sorry. Go ahead. Go ahead. But the effective date of an AIA is when it becomes collectible. and that it was this lease the the II wasn't collectible until the commencement of the vacancy lease which was June 19th.

[01:01:08]>> The actual lease was signed on May 31st.

[01:01:11]>> That's the date of signing but the bulletin applies to the >> the bulletin >> effective excuse me I'm sorry effective date is the commencement of the vacancy lease and that's June 19th not the date it was signed. Yeah, the bulletin.

[01:01:24]>> That's when the teny isn't that for the purposes of the statute. Isn't that when the teny >> takes effect?

[01:01:31]>> No, the tenency took effect immediately upon signing the lease and that's because it becomes immediately enforceable.

[01:01:36]>> Really?

[01:01:37]>> The lease term doesn't >> What authority do you have for that?

[01:01:40]>> Yeah, I don't I say that >> the operational bulletin says the effective date of the AIA is when it becomes collectible. The effective date is the commencement of the vacancy lease.

[01:01:52]>> Right. I want to I want to address your question about the operation of Wolitin directly because first of all >> I'd actually like you to No, directly would be good.

[01:02:00]>> I'm sorry.

[01:02:00]>> You said you'd like to address my question indirectly.

[01:02:03]>> No, I I meant directly. I apologize, your honor. Um so the operational bulletin uh number one, this court is not bound by DACR's operational bulletins. This >> we generally defer to them. You you >> is there anything to the contrary that we should rely on instead?

[01:02:19]>> Is there your authority for us to disregard the operational bulletin?

[01:02:22]>> The operational bulletins are meant to apply to apartments that are still um bound by red civilization.

[01:02:29]>> You haven't answered my question, which is what authority is there that's contrary to what's in the operational bulletin which should lead us to disregard it. Altman and the legislative history of Altman in the court of appeals. And that's what they approach.

[01:02:42]When you look at the language of the 2015 statute and when you look at the latch the language of the 1997 statute and the 2011 statute, they clearly make a point that it should be done at any time on or after the effective date. And the legislative history of Altman is ve the legislative history, excuse me, of the 1997 reform act is important here, which is explored in Altman because in that case, what they what they explained what the court explained in Altman was that there was a city bill at the time that tried to limit the deregulation um the deregulation threshold to the amount that was the legal rent at the time of the vacancy.

[01:03:22]>> Thank you.

[01:03:27]Thank you.

[01:03:30]>> Just a few.

[01:03:30]>> Could you address the question about the effective date of the IIS?

[01:03:34]>> The effective date of the IIS are is addressed by DHTR's guidance many times in many operational bulletins across many years, this statute and the previous one, and is at the commencement date of the next lease. The II's any >> and the commencement date is the date of >> the possession >> the effective date, not the signing date. Correct.

[01:03:51]>> Yes. It is the day that the tenant has possessory rights to the apartment.

[01:03:54]>> June 14th.

[01:03:55]>> Correct. In this situation, yes. June June 14th, 2019. A tenant does not have possessory rights to an apartment for a lease that's signed on on June 1st.

[01:04:04]>> Just because you sign the lease doesn't mean you can walk in and throw everybody out. In this case, did the DHCR issue an order saying that the uh apartment was no longer uh going to be subject to regulation? No, they never actually applied for deregulation with DHTR prior to >> once the once the improvements have been made etc. Is that it? Does it just miraculously become disable?

[01:04:25]>> It doesn't happen by by operation of law, does it?

[01:04:27]>> Right. It doesn't happen in the abstract. There needs to be an actual event, a legal event that >> and in order correct >> typically yes that does require that as well. Now, it's I I believe it's more required in terms of the what's required under the new statute, but >> because there would have to be some type of um um documentation.

[01:04:46]>> Correct.

[01:04:47]>> Um to verify exactly what the improvements were.

[01:04:50]>> Correct. And I think what's really important to point out is that DHCR actually there were other situations where this type of event happened. Maybe not so much where the lease actually commenced on the effective date of the statute, but in the revised 2020 bulletin, um the 2016-1 revised in 2020, the DHTR wrote, "The following applies to leases offered or entered into prior to June 14th, 2019. Offered or entered into but not commenced, but commencing effective on June 2019. June 14th, 2019 or thereafter that use the old IAI amortization formula. It says owners must within 150 days of this bulletin provide their tenant with a revised lease as well as any refund required based on any needed recalculation of the amortization formula and the legal rent.

[01:05:36]The DHCR expressly acknowledged that this situation has happened that leases were signed prior to June 14, 2019 but started after and said landlord you have to correct this and and the defendant here did not do that.

[01:05:48]>> Thank you. Thank you.

[01:05:49]>> The last case for argument he will be Heather Rosen.

[01:06:05]Good afternoon.

[01:06:06]>> Good afternoon.

[01:06:07]>> Um, Rebecca Martin of the Legal Aid Society for Appalent Heather Rosen. Your honors, Miss Rosen is exactly the kind of person that the diversion statute is meant to help. At the time time of these cases, she was 36 years old. She had struggled with drug addiction and heroin addiction in particular.

[01:06:24]>> True. But didn't the court almost bend over backwards to to give her the aid that she needs?

[01:06:30]>> Your honor, the court >> I mean that >> didn't she refer her three times to this diversion program? Your honor, she was referred to the diversion program multiple times, but she was when she was eventually actually given diversion in 2018, the program she was given did not meet Cruz's standard of actually giving her a reasonable opportunity to address her drug addiction and complete the program.

[01:06:53]>> Who makes that determination in terms of um how whether the program meets the uh individual's needs or not?

[01:07:01]>> Your honor, I suppose it's initially the trial judge and then it comes >> No, it's the program, right? the program. If there's an issue with the program, then you go back before the trial, before the judge, and there's a discussion as to whether or not there should be another program that's going to meet her needs.

[01:07:17]>> Well, on the one hand, she stated that uh it didn't meet her medical needs, and so I think she left the program, and then there was another one she stated that there were uh women there who >> mother and children >> who uh had children, and she had lost a child. But there was nothing that said that that particular program was only for uh females with children.

[01:07:38]>> Your honor, that's true. But to the med I think the medical issue is the more key one here. She had was ultimately told that she had fractures in both of her legs. From the outset in the program, she was telling them, I am in extreme pain. My ankles are very swollen. And they still made her walk a mile every day to get methodone, which ultimately made the fractures worse. she and that is why she ended up needing to leave. It was against the program's advice, but when she went to the hospital, >> that wasn't the main issue in terms of the um the failure to complete the program. The main issue was that they knew that she was in the hospital. They knew that she was receiving care, but then she failed to keep in contact um with the representatives and she failed to keep in contact with the court.

[01:08:23]>> Your honor, >> I mean, the court released her for further medical treatment. That wasn't the issue. She tests positive.

[01:08:30]>> Ye. Yes, your honor.

[01:08:32]>> So, she was able to walk to get the drugs, right?

[01:08:35]>> Then she shoplifts. Then there's another case. I mean, how much I agree with my colleague. The judge bent over tremendously to try to help her.

[01:08:46]>> They did. And yet, you know, she had originally been given this benefit aversion and everything that happened after that, her eventual relapse after going through the stressors of having to have surgery. Also, her mother was dying, her relapse and the fact that she then picked up new cases. That all happened because of the initial initial inappropriate programming. She needed inpatient treatment. Everyone recognized this. And this >> I thought that was the what wasn't that wasn't that the promise? It was a one-year residential three months out.

[01:09:17]>> Yes. But under People v Cruz and those other cases, it needs to be an appropriate program that can actually, you know, keep her there. She wasn't able to stay in that program because of the physical injury that they were not able to accommodate or >> again another program which would fit her needs would have been found. But she had three opportunities. Three, there were three programs.

[01:09:41]She >> I mean she had three opportunities >> but the at least for after the time she'd been granted it her fail yes she did fail to come back after there was initially a period where she was trying to get the medical documentation documentation >> here's the other issue at at how at what point do you say that it that the court abuse its discretion in just saying okay enough is enough I mean how do we make that determination that there was an abuse of discretion given the fact that she was given these opportunities Your honors, I think it is because in a case where she, you know, everyone had recognized a year before she was a good candidate for diversion, her failure here was in part based on whether or not you think it reaches the level of Cruz, a program that was not able to support her, and then this malstrm of extreme stressors, surgery, the death of her mother, things that would push any anyone to the limit.

[01:10:33]>> So again, at what point do we say that the court abuses discretion? I think when you know the diversion statute does contemplate that that recovery is not a straight path and where someone a year before had been found appropriate for discretion and a year later >> the court should have given the court should have given her a fourth or fifth or sixth uh opportunity.

[01:10:54]>> Your honor, I would look at it as a second because she'd only actually been put in the program once and then her failure to report after that was tied up in that end.

[01:11:02]>> Also, it wasn't just a failure to report. She was continuing to do drugs and she was continuing to get arrested.

[01:11:09]So every time a judge takes this time of effort, there's another defendant who could have had that bed. So again, three times this judge tried. How much more could she have done?

[01:11:20]>> Thank you. You have time on your bottom.

[01:11:27]>> Good afternoon, your honors. Elizabeth Schmidt for the people. May it please the court. Council, your adversary keeps saying that the program just wasn't appropriate. I don't I forget the exact word that she used, but how do you respond to that?

[01:11:39]>> I don't think the program matters. I don't think or rather I don't think the court even needs to consider the program the appropriateness of it although I do think it was totally appropriate because I think because the defendant recovered from her ankle injuries and was allowed to recuperate at the hospital of her choice then comes back to court. The court tells her okay basically gives her a free pass and says now I want you to re-engage with MDC.

[01:12:06]At that point, after the court has told her and after she seems to be fully medically cleared, then she abscon. So, I think we're just in a simply different posture where we're no longer talking about the appropriateness of the treatment and did the defendant receive the benefit of her bargain because she reaffended and we're in a very different world here.

[01:12:24]>> Court, I'm sorry. If the program were really inappropriate for an an individual for some reason, do they have a recourse of going back to court to complain about to ask to be sentenced to a different program?

[01:12:36]>> Absolutely. I mean, the defendant was appearing regularly before the court and neither she nor her attorney raised this issue. The only time the defendant spoke at all about the program, I believe, was at sentencing after she had again committed two more felonies. And even then, she didn't ask for a remedy. She just told the court that she didn't feel it was fair where she was placed that her attorneys did not bring the issue to the court's attention. No one asked for a remedy. So, she had plenty of opportunities here. She's obviously regularly interfacing with the court, but this was not drawn to its attention.

[01:13:08]So, it is >> council clearly here the the defendant has a drug issue, right? And and we know that in terms of uh drug addiction and and helping uh people that have that issue that part of the recovery is relapse, right? that unfortunately that's what it is. So in that regard, why shouldn't the court have given her a a fourth or a fifth or whatever number chance? Sure.

[01:13:30]>> I mean, first of all, your honor, one thing I'd point out that I'm I'm not sure we brief or fully briefed, but I do believe it is noted in our facts. Um, one thing I'd notice, defendant did relapse. She did test positive for drugs, and that's not the point at which the court terminated her participation.

[01:13:46]>> She tested positive October 31st, and the judge still let her stay out.

[01:13:50]>> Yes, your honor. and warned her again, you're going to be tested weekly. And then she warrants.

[01:13:55]>> Yes. And to add to that too, the court also knew that defendant had previously been subject to, I believe, an estimated four courtordered programs.

[01:14:06]>> Yes.

[01:14:06]>> She had not successfully completed any of them.

[01:14:09]>> Well, there was some discussion in the beginning as to whether she was um um whether a program was appropriate.

[01:14:15]Right. I'm I'm sorry.

[01:14:16]>> I think there was some discussion initially as to whether she was even whether a program would be appropriate, whether diversion would be appropriate.

[01:14:23]>> I I don't recall off the top of my head, your honor. I do remember at by the time of her second arrest in 2018, the court says, you know what, she's incarcerated at this point, so she will definitely get evaluated this time. She'll have to show up um because she's in custody. So, I I do think the court extended its hand time and time again here. Um, absolutely substance use disorder is a tricky and foreigny issue, but the statute demands some level of engagement by the defendant and you are not seeing this here. Instead, you're seeing abscondment after abscondment um and rearrest of course. And so certainly the court could not have abused its discretion in its ultimate sentence for the defendant. I think that was an eminently reasonable careful sentence that was >> How does the rearrest figure into the court's exercise of its discretion?

[01:15:20]>> I I mean the rearrest could have given the court the court could have sentenced the defendant to a much higher sentencing range, but instead the court said, "I'm going to send her to Riker where she has been doing well. All parties agreed with that. She has access to methadone. She has been doing well in treatment. Providers have said she should not be allowed to leave the facility. I'm so sorry.

[01:15:44]>> Was away from the partner.

[01:15:45]>> Away from the partner as well.

[01:15:47]>> I I mean I think the court very carefully crafted this to aid the defendant. Um >> thank you.

[01:15:54]>> Thank you, >> your honor. Just a few things. I would disagree that the Miss Rosen didn't ask for a remedy. She did ask for another chance at diversion and she was in a material a better place particularly after the road not taken programming and where the the programming director in that letter from road not taken said the best next step now that she's gained these skills she's recognized the the effect of her partner she is in a better position than she's ever been to take advantage of this program which she really wants to do and the next best step is inatient in the community um so I do think this was be before the court.

[01:16:35]Um the the court seems to have uh in noting many reasons why it did not grant the um the request for diversion this third time felt also that the course that the court prescribed um would avoid the possibility of the defendant going to state prison where she might not be able to get the methadone. So it seemed like the court did try to think of a lot of things. I know it's wasn't what you wanted, but the court did go through an awful lot of different factors.

[01:17:07]>> Yes, I I don't want to deny that the court below was was trying to do right by Miss Rosen, but I still think where someone had been granted diversion where her failures came directly from an inappropriate placement. Uh she should have been given enough.

[01:17:21]>> So she has finished her sentence. So what so what is it that you want us to you would want us to do?

[01:17:26]>> We are we are asking for dismissal here.

[01:17:29]you want us to dismiss the indictment because >> um based on particularly Cruz and then also in the interest of justice once someone has been inappropriately denied diversion and have already served their sentence you know there's no purpose in remand where >> where you I'm saying yes so you want us to dismiss the indictment >> yes that is >> because she because the court should have given her an additional opportunity to go to another program >> yes and that is that does follow from cruise >> thank you thank you all