The First Department determined plaintiff had not stated a cause of action for fraud. The fraud cause of action was based upon defendant’s alleged misrepresentation that it had procured insurance to protect plaintiff against default by the largest subcontractor on the construction project. It was not disputed that no such insurance was procured: …[P]laintiff’s fraud […]
After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father: “It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of […]
In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud: Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature […]
In a breach of (purchase) contract action, the Second Department explained that a conversion cause of action could not be based upon the down payment in seller’s possession, and an unjust enrichment cause of action could not be based on the same facts as the breach of contract cause of action: The Supreme Court properly […]
In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case. The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal: Given plaintiff’s allegations that she had no […]
The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects. The plaintiff was injured when removing a mirror from the ceiling of a shower stall: …[T]he trial court erred in failing to charge the jury in connection with Labor Law § […]
In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles: Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ […]
The Second Department explained that the Town Law, not the Election Law, controls in a fire district election. The Town Law, unlike the Election Law, does not require that a voter whose registration status cannot be immediately verified provide an affidavit he or she is duly registered to vote. The issue was important because the […]
Even though a complaint had ostensibly been dismissed “with prejudice” because the plaintiff did not have the capacity to sue, a subsequent complaint brought after plaintiff gained capacity to sue could not be dismissed pursuant to res judicata or collateral estoppel: The record makes clear that, notwithstanding its denomination of the dismissal of the first […]
The Second Department determined the failure to comply with discovery deadlines and provide good faith responses to discovery requests justified the preclusion of evidence: “The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims’”… . The nature and degree of […]
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