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 […]
The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed. Evidence of a witness’ reason to fabricate should not have been excluded as collateral: …County Court improperly denied his motion requesting permission to question Corsi […]
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