The Second Department affirmed Supreme Court’s denial of a motion to dismiss brought by a defendant who had entered an indemnity agreement with a judgment debtor. The Second Department explained that plaintiff had stated a cause of action based upon plaintiff’s being a third-party beneficiary of the indemnity agreement: Pursuant to CPLR 5227, a special […]
In affirming Supreme Court’s dismissal of a defamation cause of action, the Second Department explained the plaintiff’s burden when the plaintiff is not specifically named in the allegedly defamatory statements: While a plaintiff need not be specifically named in a publication to sustain a cause of action sounding in defamation, a plaintiff who is not […]
In reversing Supreme Court, the Second Department determined the plaintiff was entitled to summary judgment in a fraudulent conveyance action. The court explained the relevant legal principles as follows: Pursuant to Debtor and Creditor Law § 276, [e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to […]
In extensively modifying Supreme Court’s rulings in an action to foreclose a mechanic’s lien, to set aside alleged fraudulent conveyances pursuant to Debtor and Creditor Law section 273, and to recover damages for diversion of trust assets pursuant to article 3-a of the Lien Law, the Second Department explained (1) the effect of obtaining a […]
The Second Department determined the family offense of attempted assault in the second degree had not been “established by a fair preponderance of the evidence” in Family Court: A family offense must be established by a fair preponderance of the evidence (see Family Court Act § 832;…). “The determination of whether a family offense was […]
In affirming Family Court’s denial of father’s petition to modify child support, the Second Department explained the doctrine of constructive emancipation, noting that a child’s reluctance to see a parent is not abandonment: The father claimed that he should no longer be required to pay support because the mother had alienated the child from him. […]
The Second Department determined Family Court’s finding that it did not have jurisdiction (over a visitation petition) under the Uniform Child Custody Jurisdiction and Enforcement Act was error. But the Second Department went on to determine that New York was an inconvenient forum for the proceeding: A New York Family Court has jurisdiction to make […]
The Fourth Department affirmed the determination the petitioner (a hospital) was not entitled to a property tax exemption because the use of the property was in violation of a zoning law. After noting that a proceeding pursuant to RPTL article 7, and not an Article 78 proceeding, is the proper vehicle for challenging a tax […]
The homeowners (defendants) refused to pay the builder (plaintiff) the final payment under a custom home building contract because of alleged defects in the home. The homeowners counterclaimed for breach of the housing merchant implied warranty. The Fourth Department determined the written-notice-of-the-defect warranty-requirement was not an express condition precedent and the builder had waived the […]
The Fourth Department determined that Supreme Court should have granted summary judgment on a counterclaim which sought damages for undistributed goodwill of a partnership. The partnership had been dissolved after the death of one of the partners and did not continue under the same structure. The Fourth Department explained: Here, even assuming, arguendo, that the […]
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