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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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PLAINTIFF’S FALL FROM A LOW CONCRETE RETAINING WALL TO THE GROUND WAS NOT THE TYPE OF ELEVATION-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT).
HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).
PLAINTIFF BICYCLIST RAN INTO THE BACK OF DEFENDANT’S STOPPED OR STOPPING CAR; DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN THE JUDGE TOLD HIM NOT TO DISCUSS HIS TRIAL TESTIMONY WITH DEFENSE COUNSEL DURING A TWO-DAY ADJOURNMENT; ALTHOUGH THE LEGAL-SUFFICIENCY AND RIGHT-TO-COUNSEL ISSUES WERE NOT PRESERVED, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE (SECOND DEPT).
EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT, ASSAULT SECOND CONVICTION VACATED (SECOND DEPT).
Out of State Visitation for All School Breaks and Three-Day Weekends (In Addition To Summers) Should Not Have Been Granted
PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).
THE CONDITIONAL DIRECTIVE THAT FATHER BE AWARDED SOLE CUSTODY IF MOTHER DID NOT RETURN FROM SWEDEN WITH THE CHILD IS NOT ENFORCEABLE; A CHANGE IN CUSTODY MUST BE BASED ON THE BEST INTERESTS OF THE CHILD AND SHOULD NOT BE USED TO PUNISH A PARENT (SECOND DEPT).

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