In a rear-end collision case, the Second Department affirmed summary judgment in favor of the plaintiff on liability. The accident occurred when the weather was clear and the roads dry: “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle […]
In a slip and fall case, the Second Department noted defendants’ failure to demonstrate when the area where the fall occurred had last been inspected: By failing to demonstrate when the area where the plaintiff fell was last inspected in relation to the accident, the defendants failed to make a prima facie showing that they […]
The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person. The court further held counsel should have been appointed for the alleged incapacitated person: The […]
In a full-fledged opinion by Justice Chambers, the Second Department determined plaintiff could not rely on the doctrine of the law of the case (a decision in a prior appeal) to prove the amount owed on its mechanic’s liens. The court used the opportunity to explain the “law of the case” doctrine (re: prior appellate […]
The Second Department determined that the contractor, Matell, who was hired by the tenant to construct a supermarket, could not impose a mechanic’s lien upon the property owner (Fleetwood Park) based on the tenant’s failure to pay. In affirming the dismissal of two affirmative defenses, the court explained that the lien was timely filed and […]
The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof. The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it: “The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the […]
In a full-fledged opinion by Justice Austin, over a dissent, the Second Department determined plaintiff had stated a cause of action for breach of contract based upon an agreement made during an 18-year “committed, same-sex relationship.” The complaint alleged that the partners had entered an oral “joint venture/partnership” agreement involving sharing assets, including retirement contributions […]
The Second Department affirmed Supreme Court’s dismissal of a petition brought by the National Oil Recyclers Association (NORA) challenging the NYC Department of Environmental Protection’s (DEP’s) finding that proposed amendment s to the NYC rules regarding emissions from use of grade numbers 4 and 6 fuel oils would lead to reduced emissions and would have […]
The Second Department reversed Supreme Court and determined the NYS Department of Environmental Conservation properly approved the issuance of a state pollutant discharge elimination system general permit for stormwater discharges from municipal separate storm sewer systems. Supreme Court held “the General Permit created an impermissible self-regulatory system that failed to ensure that small municipalities reduced […]
The Second Department reversed defendant’s conviction because of the misconduct of the prosecutor. In spite of the pre-trial ruling redacting the confession of the co-defendant pursuant to the Bruton rule (prohibiting the use of a non-testifying codefendant’s confession), the prosecutor repeatedly indicated to the jury that the codefendant had implicated the defendant: …[D]uring opening statements, […]
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