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FAILURE TO ADDRESS EVERY ELEMENT OF THE THEORIES OF RECOVERY ALLEGED IN THE COMPLAINT, I.E., COMMON-LAW NEGLIGENCE AND RES IPSA LOQUITUR, REQUIRED DENIAL OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.

The plaintiff alleged she was injured by a picture frame which fell on her inside an office leased by defendant.  Plaintiff alleged liability under common-law negligence and res ipsa loqutur. The Second Department determined defendant’s summary judgment was properly denied because defendant did not affirmatively demonstrate (1) a lack of exclusive control over the picture frame, (2) the picture frame did not constitute a dangerous condition, and (3) defendant did not create a dangerous condition. [Again, failure of the defense to affirmatively address every alleged theory of liability requires denial of summary judgment.]. Assil v Camba, Inc., 2016 NY Slip Op 00914, 2nd Dept 2-10-16

 

NEGLIGENCE (SLIP AND FALL, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)/MUNICIPAL LAW (SLIP AND FALL, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)/SLIP AND FALL (MUNICIPAL LAW, VILLAGE FAILED TO ADDRESS CREATION-OF-THE-DEFECT THEORY, SUMMARY JUDGMENT DENIED)

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THE ACTION TO ENFORCE THE POSTNUPTIAL AGREEMENT WAS GOVERNED BY THE THREE-YEAR STATUTE OF LIMITATIONS IN THE DOMESTIC RELATIONS LAW, NOT THE SIX-YEAR CONTRACT STATUTE OF LIMITATIONS IN CPLR 213; THEREFORE THE ACTION WAS TIME-BARRED (SECOND DEPT). ​
THE BANK DID NOT PRESENT EVIDENCE THE CREDIT CARD BILLING STATEMENTS AND THE AMENDMENTS TO THE CREDIT CARD AGREEMENT WERE MAILED TO THE DEFENDANT; THE BANK’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT AND ACCOUNT STATED CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE TRANSCRIPT OF THE SETTLEMENT PROCEEDING UTTERLY REFUTED PLAINTIFF’S CLAIM TO HAVE BEEN COERCED INTO SETTLING, THE LEGAL MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT),
PEOPLE DID NOT MEET THEIR BURDEN OF DEMONSTRATING A LACK OF UNDUE SUGGESTIVENESS IN THE PHOTO ARRAY AND LINE UP IDENTIFICATION PROCEDURES.
POLICE OFFICERS’ TESTIMONY BASED UPON DEBRIEFING GANG MEMBERS WAS INADMISSIBLE TESTIMONIAL HEARSAY AND THE POLICE OFFICERS, WHO WERE QUALIFIED AS GANG EXPERTS, ACTED AS IMPERMISSIBLE SUMMATION WITNESSES, NEW TRIAL ORDERED (SECOND DEPT).
DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY THE COMPLAINT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE.
THERE ARE QUESTIONS OF FACT WHETHER THE CITY’S DELAY IN NOTIFYING THE NEXT OF KIN OF THE IDENTIFICATION OF DECEDENT’S BODY AND THE LOCATION OF DECEDENT’S REMAINS ENTITLES THE NEXT OF KIN TO DAMAGES PURSUANT TO THE COMMON-LAW RIGHT OF SEPULCHER (SECOND DEPT).
DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT AND THERE WAS NO REASONABLE VIEW OF THE EVIDENCE IN WHICH DEFENDANT’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT.

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SUBTLE DIFFERENCE BETWEEN AMOUNT OF SUPERVISORY CONTROL NECESSARY TO SUPPORT... DEFENDANT FAILED TO AFFIRMATIVELY ADDRESS EVERY THEORY OF LIABILITY RAISED BY...