The Third Department determined plaintiff real estate broker was entitled to a commission because he presented a willing buyer at the price agreed to in the listing agreement and one of the property owners, the defendant, refused the offer because he no longer wanted to sell. In the course of the decision, the court noted […]
The Second Department determined that neither a strict foreclosure action (RPAPL 1352) nor a reforeclosure action (RPAPL 1503) can be brought to extinguish an easement where the easement holder was not named in the foreclosure action: A purchaser of foreclosed property may, under certain circumstances, commence a strict foreclosure action pursuant to RPAPL 1352 … […]
The Second Department determined defendant (Tumbiolo) had not overcome the presumption that the driver (Commisso) of Tumbiolo’s vehicle was operating the vehicle with Tumbiolo’s permission: Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial […]
The Second Department affirmed several rulings made by the trial court in the damages aspect of a trial in which plaintiff alleged defendant’s malfunctioning sprinkler system ruined over $1 million worth of clothing stored in the building. The fact that plaintiff disposed of some of the damaged clothes and sold the remainder for salvage (spoliation) […]
The Second Department determined the defendant was not entitled to summary judgment in a premises liability case. Part of plaintiff’s finger was severed when he sat down on a bar stool. There was a gap when the stool was lifted by the seat because the screws connecting the seat to the frame were either missing […]
The Second Department determined a question of fact had been raised about whether the placement of an amusement ride on the sidewalk created an inherently dangerous condition. Plaintiff turned a corner and was injured when he bumped into the machine [Defendants’] submissions failed to establish that the Mickey Mouse ride had been placed on the […]
The Third Department determined the plaintiffs—profit-making businesses operating nursing homes—did not raise questions of fact about whether reductions in Medicaid reimbursement rates instituted in 2011 violated the Takings Clause and the Equal Protection Clause: …”‘[W]here a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and […]
In this 240(1) action, the Third Department determined Supreme Court erred when it found that the accident did not arise form a physically significant elevation differential. Plaintiff was struck by part of a roll carrier (re: a roll of roofing membrane) after the roll fell to the roof. Prior to the incident the roll carrier […]
Family Court had continuing jurisdiction over the custody of a child who had been living with mother in Florida. The custody arrangement included four months per year with the father in New York: …[T]he Family Court correctly determined that New York had exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a. […]
The Second Department determined Family Court erred when it held father had not demonstrated his loss of employment constituted a substantial and unanticipated change in circumstances justifying a downward modification of his child support obligations: Loss of employment may at times constitute a substantial and unanticipated change in circumstances … . A party seeking a […]
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