The Second Department determined neither the original plaintiff, nor the bank which attempted to intervene in the action, had standing in an action to determine the validity of a mortgage. Plaintiff was not the mortgagee and the bank submitted no proof that the note was physically delivered to it, a necessary element of a valid […]
In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.: The failure of [a witness] to testify does not permit the trier […]
In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order: …Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). “A dispositional hearing must be held as a condition precedent to the entry of […]
The Second Department determined that the reimbursement of funeral expenses from the NYS Crime Victims Board should not have been reduced by 50% on the ground that the victim engaged in conduct contributing to the crime. The court wrote: … [G]eneral knowledge that narcotics sellers are subject to a greater risk of being violently murdered […]
In affirming the validity a charging lien on a settlement award on behalf of an attorney who had withdrawn from the case upon mutual consent the Second Department wrote: “Pursuant to Judiciary Law § 475, [w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes […]
The Second Department reversed Supreme Court and determined the slip and fall complaint stated a cause of action against the owner of property abutting a sidewalk. In the sidewalk was a gas cap cover, owned by a utility, and concrete on top of the gas cap created raised area which was alleged to have caused […]
In reversing Supreme Court and reinstating the complaint, the Second Department determined there were triable questions of fact whether plaintiff was negligently allowed to step off a bus onto a speed bump, causing her to fall, and whether the property owner (JQ) allowed a dangerous condition (speed bump) to exist: The [bus company] defendants failed […]
The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury. The court provided a thorough explanation of the primary assumption of risk doctrine: Under the doctrine of primary assumption of […]
In finding the defendant’s cross-claim should not have been struck as a sanction for failure to appear for depositions, the First Department noted that the affidavit in support of the motion to strike did not demonstrate a good faith effort to resolve the matter with opposing counsel: A party moving to strike a pleading pursuant […]
In a full-fledged opinion by Justice Saxe, the First Department affirmed defendant’s convictions for computer trespass, computer tampering, unlawful duplication of computer related material, and criminal possession of computer related material. Defendant was on disability leave from his employer Time Warner when he used/installed software to gain access to passwords and log-in information. The First […]
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