In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted that only seller’s agents, not buyer’s agents, can be held liable under the act: The statutory language of the RLPHRA “is unambiguous with […]
The Second Department determined the out-of-possession landlord could not be liable for a missing light in a stairwell, the alleged cause of plaintiff’s fall: “An out-of-possession landlord’s duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct”… . Here, the defendant established […]
The Second Department determined Supreme Court should have reduced the distributive award based upon the appreciation in value of the marital residence during the marriage by the equitable share of the marital debt incurred in making improvements to the residence: While the marital residence was the plaintiff’s separate property, the Supreme Court directed the plaintiff […]
The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:” “[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move”… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and […]
The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father: Here, the Family Court’s award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to […]
After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation: Absent extraordinary circumstances, such as where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, […]
The Second Department determined that a certification order which required a note of issue be filed within 70 days, rather than 90 days, could not be the basis for dismissal of the action: The certification order dated March 2, 2010, did not constitute a valid 90-day demand pursuant to CPLR 3216 because it directed the […]
The Second Department determined a note of issue which indicates discovery is not complete is a nullity: Pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21, a note of issue must be accompanied by a certificate of readiness, which must state that there are no outstanding requests for discovery and the case is […]
The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served. No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit: “Although a defendant’s sworn denial of receipt of service generally rebuts the presumption […]
In affirming the denial of the defendant’s motion to dismiss the complaint based upon a release executed by the plaintiff, the Second Dept explained that motion must be denied because the scope the release could not be definitively determined: “The meaning and scope of a release must be determined within the context of the controversy […]
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