The Second Department explained the criteria for a motion to consolidate and explained when consolidation, as opposed to joining two actions for trial, is not appropriate: “A motion to consolidate two or more actions rests within the sound discretion of the trial court” (… see CPLR 602). “Where common questions of law or fact exist, […]
In a Labor Law action stemming from a fall through an open manhole, the plaintiffs submitted transcripts of one the plaintiff’s deposition testimony as part of plaintiffs’ motion for summary judgment on liability. Supreme Court denied plaintiffs’ motion on the ground that the certified deposition transcripts submitted by them were not signed. In determining that […]
In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote: …[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally […]
The Second Department determined that a trial judge can rescind a mistrial declaration and noted that a mistrial granted with the consent of the defendant does not bar retrial: When a mistrial is declared in a criminal case without the consent, or over the objection, of the defendant, the prohibition against double jeopardy contained in […]
The Second Department determined the trial court quashing of an subpoena served upon a defense witness deprived defendant of his constitutional right to present a defense and required a new trial. People v Eastment, 2013 NY Slip Op 03687, 2nd Dept, 5-22-13
There was a collision involving a car self-insured by Hertz, the petitioner. The respondent driver of the Hertz car alleged she collided with another car which left the scene. Based on a description of the other vehicle and the last four digits of the license number. Hertz determined the owner, Morrison, and insurer, Travelers, of […]
The Second Department determined that plaintiff-wife’s stipulation that variable supplement fund (VSF) benefits were not marital property should be upheld, even though the law was unclear at the time of the stipulation and the Court of Appeals subsequently determined the benefits were marital property: The Referee was correct in noting that, at the time of […]
In finding the homeowner’s exemption of Labor Law 240(1) and 240 applied to work on a single-family house in which the business owners lived and from which the defendant business derived no income, the Second Department wrote: Labor Law §§ 240(1) and 241, which impose certain nondelegable safety duties upon “contractors[,] owners and their agents,” […]
Plaintiff was struck by a small piece of sheetrock a worker dropped from the third floor. In affirming the dismissal of the Labor Law 240(1) cause of action, the Second Department wrote: As the Court of Appeals has observed, not every injury caused by a falling object at a construction site is covered by the […]
In determining plaintiff’s use of a step ladder that was not unfolded did not warrant dismissal of the Labor Law 240(1) cause of action for a fall from the ladder, the First Department wrote: Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim as against defendants …by his testimony […]
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