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THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​

The Second Department determined the planning board abused its discretion in issuing a special permit and approving a site plan for a plant nursery and arborist business. To issue the special permit, the planning board improperly waived a requirement that the business have frontage and access to two major roads. The approve the site plan, […]

November 24, 2021 /0 Comments/by
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ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the 50-h […]

November 24, 2021 /0 Comments/by

THE BIOLOGICAL FATHER’S CONSENT TO THE ADOPTION OF HIS CHILD WAS NOT REQUIRED BECAUSE HE FAILED TO SUPPORT THE CHILD DESPITE THE MEANS TO DO SO (SECOND DEPT). ​

The Second Department determined father’s consent to the adoption of his child is not required where the father has not maintained contact with the child: “A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father ‘maintained substantial and continuous or repeated […]

November 24, 2021 /0 Comments/by
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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence: “A jury verdict should not be set aside as contrary to the weight of the evidence unless […]

November 24, 2021 /0 Comments/by

WHEN THE BALANCES OF FIRST MORTGAGES ARE INCREASED WITH SECOND MORTGAGE LOANS AND A CONSOLIDATION, EXTENSION, AND MODIFICATION AGREEMENT (CEMA) IS ENTERED CONSOLIDATING THE MORTGAGES INTO SINGLE LIENS, THE FIRST NOTES AND MORTGAGES STILL EXIST; WHEN A MORTGAGE IS ERRONEOUSLY DISCHARGED WITHOUT A SATISFACTION OF THE DEBT, THE MORTGAGE MAY BE REINSTATED IF THERE HAS BEEN NO DETRIMENTAL RELIANCE ON THE ERRONEOUS DISCHARGE (SECOND DEPT).

The Second Department noted that where balances of first mortgage loans are increased with second mortgage loans and a Consolidation, Extension, and Modification Agreement (CEMA) is entered consolidating the mortgages into single liens, the first notes and mortgages still exist. And where, as here, there has been an erroneous discharge of mortgage without a satisfaction […]

November 24, 2021 /0 Comments/by
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IN THIS FORECLOSURE PROCEEDING, PLAINTIFF BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; NO FOUNDATION FOR THE SUBMITTED BUSINESS RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this foreclosure action should not have been granted. Strict compliance with the notice requirements of RPAPL 1304 was not demonstrated with admissible evidence: … [I]n support of its motion Bayview [plaintiff, successor-in-interest to the original plaintiff, Bank of America (BoA)] submitted the affidavit […]

November 24, 2021 /0 Comments/by
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ALTHOUGH PLAINTIFF’S HOSTILE WORK ENVIRONMENT ALLEGATIONS DID NOT STATE A CAUSE OF ACTION UNDER THE APPLICABLE NEW YORK STATE HUMAN RIGHTS LAW PROVISIONS, THE ALLEGATIONS DID STATE A CAUSE OF ACTION UNDER THE MORE PROTECTIVE NEW YORK CITY HUMAN RIGHTS LAW (CT APP).

The First Department, reversing (modifying) Supreme Court, determined the complaint stated a hostile work environment cause of action under the more protective New York City Human Rights Law, but not under the New York State Human Rights Law: … [A]lthough the motion court properly concluded that it does not rise to the level of “severe […]

November 23, 2021 /0 Comments/by

WORKERS’ COMPENSATION DEATH BENEFIT CLAIMS CANNOT BE TRANSFERRED TO THE SPECIAL FUND ON OR AFTER JANUARY 1, 2014, EVEN IF THE DISABILITY CLAIM FOR THE SAME INJURY HAD BEEN TRANSFERRED BEFORE THE CUT-OFF (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined Workers’ Compensation death benefit claims which accrued on orf after January 1, 2014, cannot be transferred to the Special Fund for Reopened Cases (Special Fund) even if the disability claim for the same injury had […]

November 23, 2021 /0 Comments/by
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IF QUESTIONING A DEFENDANT ABOUT WHERE HE/SHE LIVES SERVES AN ADMINISTRATIVE PURPOSE AND IS NOT A DISGUISED ATTEMPT TO OBTAIN INCRIMINATING INFORMATION, DEFENDANT’S ANSWER IS SUBJECT TO THE PEDIGREE EXCEPTION TO THE MIRANDA REQUIREMENT AND WILL NOT BE SUBJECT TO SUPPRESSION; DNA EVIDENCE GATHERED BY THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined: (1) under the facts, the defendant’s answer to the police officer’s question regarding where he lived fell within the “pedigree exception” to the Miranda requirement (and therefore was not suppressible); and (2), the DNA evidence […]

November 23, 2021 /0 Comments/by
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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply: […]

November 23, 2021 /0 Comments/by

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