In a full-fledged opinion by Judge Lippman, over two dissenting opinions, the Court of Appeals held that plaintiff had stated a negligence cause of action against a laboratory (Kroll) which issued a test-result positive for the presence of drugs and initiated a violation of probation proceeding against the plaintiff. In concluding the laboratory owed a […]
The Second Department affirmed Supreme Court’s denial of a “registered voter’s” [Nichol’s] motion to intervene in an action to determine the constitutionality of a local law concerning term limits for public offices. The court explained: Upon a timely motion, a person is permitted to intervene in an action as of right when, among other things, […]
The Second Department determined Supreme Court properly dismissed an action for a declaratory judgment re: an insurance company’s duty to defend and indemnify because of its similarity to another pending action: Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a […]
In a slip and fall case, the plaintiff did not allege the city had notice of the defect and sought to amend the complaint to add the allegation. The Second Department determined plaintiff should have been allowed to amend: … [T]he Supreme Court erroneously granted that branch of the City’s motion which was pursuant to […]
In a full-fledged opinion by Justice Dillon, the Second Department reversed Supreme Court’s denial of plaintiff’s motion, pursuant to CPLR 2001, to allow the filing and serving of a summons and complaint after the statute of limitations had expired. Plaintiff had timely attempted to file the summons and complaint using a new electronic filing system […]
The Second Department concluded the trial court should have allowed the cross-examination of a witness about a physical characteristic of the defendant the witness had not mentioned to the police: “[A] witness may not be impeached simply by showing that he [or she] omitted to state a fact, or to state it more fully at […]
In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria: Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by […]
The Second Department determined Supreme Court should not have imposed an enhanced sentence on the ground defendant was late appearing for his sentencing: The transcript of the plea proceeding does not indicate that the defendant was given any instructions as to what time he was to appear for sentencing; rather, he was told that he […]
The Second Department explained the concept of an “equitable mortgage” and noted that affirmative defenses waived pursuant to CPLR 3211(e) can be included in an answer amended by leave of court: New York law allows the imposition of an equitable lien if there is an express or implied agreement that there shall be a lien […]
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 […]
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