The Second Department determined Supreme Court should not have allowed plaintiff to amend his bill of particulars to include aggravation of a preexisting condition because the request came after four years of discovery during which plaintiff had affirmatively stated his injuries did not include aggravation of preexisting condition: Generally, in the absence of prejudice or […]
In a property-line dispute, the Second Department reversed Supreme Court ruling that the location of the fence on plaintiff’s property was the “law of the case.” The “law of the case” doctrine was imposed by Supreme Court based on the dismissal of the title insurance company’s affirmative defense which claimed the fence was on defendant’s […]
The Second Department explained the criteria for avoiding dismissal for failure to comply with a 90-day notice to serve and file a note of issue: Here, the defendant … did not serve a 90-day demand, but relied instead on an order dated June 13, 2008, which instructed the plaintiffs that the failure to serve and […]
The Second Department explained the criteria for disclosure from a nonparty witness: A party seeking disclosure from a nonparty witness must demonstrate that the disclosure sought is material and necessary, and must set forth the “circumstances or reasons” why disclosure is “sought or required” from such nonparty witness (CPLR 3101[a][4]…). Here, the plaintiff failed to […]
The Second Department determined law office failure constituted a valid excuse for a defendant’s default and defendant’s answer, which was attached to the papers submitted in opposition to plaintiff’s motion for a default judgment, would be deemed served in the absence of a cross motion seeking leave to file a late answer: In its discretion, […]
The Second Department noted that a court does not have the power to dismiss a complaint based on the doctrine of laches, or failure to prosecute, where plaintiff has not been served with a 90-day demand to serve and file a note of issue (CPLR 3216). Baxter v Javier, 2013 NY slip Op 05605, 2nd […]
The Second Department explained that the consolidation and assignment of mortgages did not affect the validity of the original mortgages: In the instant matter, the plaintiff increased the outstanding balance of the first mortgage by borrowing the second mortgage loan and executing the CEMA [Consolidation, Extension and Modification Agreement]. Although the CEMA created a single […]
In an Article 78 proceeding, the First Department reversed the Board of Education’s denial of a teacher’s petition to annul an unsatisfactory performance evaluation because there was no longer any documentation substantiating any instances of corporal punishment in the teacher’s file. Disciplinary letters concerning allegations of corporal punishment had previously been removed from the teacher’s […]
In a full-fledged opinion by Justice Moskowitz, the First Department determined that Supreme Court should have dismissed the state complaint because the dismissal of the related federal complaint controlled under the doctrine of res judicata. The lawsuit was brought by the insurer (Syncora) of mortgage-backed securities issued by the defendant (JP Morgan [formerly known as […]
The First Department determined a motion to intervene in an action which ended in a default judgment should not have been granted. Plaintiff sued defendant, which defaulted. Defendant had transferred its assets to the parties seeking to intervene to vacate the default. Plaintiff had sued the intervenors alleging the transfer of assets from the defendant […]
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