In a full-fledged opinion by Justice Balkin, the Second Department determined trial courts have the discretion to determine applications made in the absence of the formal requirements of a cross-motion. In this case the defendant answered a motion for a default judgment demonstrating a reasonable excuse and a meritorious defense. Included in the answering papers […]
In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default: …[T]he Supreme Court issued an order granting the defendant’s motion to vacate his default in appearing and answering the complaint on the ground of lack […]
The Second Department reversed Supreme Court’s dismissal of a complaint based on delay in prosecuting the action because the 90-day demand (CPLR 3216) had not been served on the plaintiff. The First Department wrote: CPLR 3216 permits a court to dismiss an action for failure to prosecute only after the court or the defendant has […]
In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:” A sex offender’s successful showing by a preponderance of the evidence of […]
In finding that the underinsured endorsement for automobile insurance did not cover injuries incurred when plaintiff was bitten by a dog through the window of a car as she walked past, the Second Department explained: Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and […]
In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained: ” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law’” (Matter of Soares v Herrick, 20 NY3d 139, 145, […]
The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding. Only the denial of the request to vacate the default can be reviewed: “[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such […]
In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote: Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family […]
The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence: …[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner’s car […]
In finding that the complaint did not state a cause of action against an accountant for negligent misrepresentations made to third parties with no contractual relationship, the Second Department explained: In certain circumstances, accountants may be held liable for negligent misrepresentations made to third parties with whom they have no contractual relationship, but who have […]
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