In reversing Family Court’s denial of a modification of a custody arrangement, the Second Department explained the criteria for changing a custody arrangement entered into by agreement: Where parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of when the […]
The Second Department affirmed Supreme Court’s grant of leave to serve a late notice of claim against a school district, in the absence of a reasonable excuse: Here …[t]he District…acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The District’s employee witnessed the infant petitioner’s accident, which […]
Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital. The patient was struck by a car an hour or two after […]
In a mortgage foreclosure action, the Second Department explained that it was not necessary that the foreclosing party have provided the consideration and that, with respect to a tenancy by the entirety, each tenant can sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other: […]
The Second Department explained “standing” as it relates to a mortgage foreclosure action as follows: Where, as here, standing is put into issue by the defendant, “the plaintiff must prove its standing in order to be entitled to relief”…. “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or […]
The defendant library was sued by the plaintiff contractor which claimed the library caused a delay in the performance of a contract by failing to secure access to an adjacent property which was necessary before plaintiff could complete the work. In affirming the denial of summary judgment to the defendant library, the Second Department […]
The Second Department determined Supreme Court should not have granted plaintiff’s motion for a default judgment and denied defendant’s motion to compel the acceptance of a late answer: Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3215 for leave to enter a […]
The Second Circuit asked the Court of Appeals to answer certified questions about how the Labor Law relates to a tip-splitting policy used by Starbucks. Over two dissents, the Court of Appeals determined, under the Labor Law, limited supervisory duties did not mandate exclusion from the tip pool: Starbucks maintains a written policy governing the […]
The Court of Appeals determined the closure of a railroad crossing did not constitute a regulatory taking of claimant’s land. Claimant used the crossing to move equipment from one part of his land to another: The basis for the claim is that the State Department of Transportation required the closure of a railroad crossing that […]
The Second Department affirmed Supreme Court’s denial of defendant’s motion for resentencing pursuant to CPL 440.46: When a defendant is eligible for resentencing pursuant to CPL 440.46, there is ” a presumption in favor of granting a motion for resentencing relief absent a showing that substantial justice dictates the denial thereof’”…. “However, resentencing is not […]
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