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THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that it has to power to search the record and award summary judgment to a party which did not appeal. This was a slip and fall case and decedent’s estate (the nonappealing party) was a defendant. The evidence demonstrated decedent (Kass) did not have actual or constructive knowledge of the debris on the sidewalk which allegedly caused plaintiff to fall:

Although Kass did not properly appeal from the order, this Court has the authority to search the record and grant summary judgment to a nonappealing party with respect to an issue that was the subject of a motion before the Supreme Court … . Upon searching the record, we award Howard Alan Kave, as representative of Kass’s estate, summary judgment dismissing the complaint insofar as asserted against him based upon the same rationale which supports the award of summary judgment in favor of the Mall [i.e., no actual or constructive notice of the condition]. Chiamulera v New Windsor Mall, 2023 NY Slip Op 00300, Second Dept 1-25-23

Practice Point: The appellate division has the power to search the record and award summary judgment to a  nonappealing party.

 

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THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​
NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED.
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SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS.
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PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS FALL; THE LABOR... NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER...