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THE MOTION TO DISMISS THE BREACH OF CONTRACT CAUSE OF ACTION BASED ON DOCUMENTARY EVIDENCE DID NOT ESTABLISH A DEFENSE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should not have been granted:

… [T]he plaintiff stated a cause of action, in effect, to recover damages for breach of contract based on an alleged breach of the implied covenant of good faith and fair dealing inherent in the parties’ contract . The plaintiff alleged, in effect, that there was an implied understanding that the defendant would cooperate with the plaintiff’s efforts to legally change the usage of the rental space, which would require approval by the DOB, and, therefore, the defendant’s…  failure to cooperate in legalizing the premises constitutes a breach of contract.

“A party seeking dismissal pursuant to CPLR 3211(a)(1) on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim” … . “In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable” … . Here, the evidence submitted by the defendant either was not “documentary” within the meaning of CPLR 3211(a)(1) or failed to conclusively establish a defense to the third cause of action as a matter of law … . Twinkle Play Corp. v Alimar Props., Ltd., 2020 NY Slip Op 04987, Second Dept 9-16-20

 

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DEFENDANT’S MOTION TO MODIFY THE CUSTODY ARRANGEMENT RAISED DISPUTED FACTS; THE MOTION SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (SECOND DEPT).
IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).
A PRIOR PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION UNDER LABOR LAW 200 AND COMMON LAW NEGLIGENCE (PREMISES LIABILITY); BUT A PRIOR PROPERTY OWNER CANNOT BE LIABLE UNDER LABOR LAW 240(1) OR 241(6) FOR CONSTRUCTION-RELATED ACTIVITIES (SECOND DEPT).
PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP.
UPON THE PRIOR APPEAL, THE SECOND DEPARTMENT MADE A FINDING THAT RESPONDENT SUFFERED FROM SEXUAL SADISM DISORDER AND REMITTED THE MATTER; SUPREME COURT IGNORED THE FINDING AND HELD A NEW NONJURY TRIAL ON ALL ISSUES; SUPREME COURT DID NOT HAVE THE AUTHORITY TO IGNORE THE SECOND DEPARTMENT’S MANDATE (SECOND DEPT).​
THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT).
THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).
COTENANT ACQUIRED THE OTHER COTENANT’S INTEREST BY ADVERSE POSSESSION.

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