In determining the appropriate surcharge to be imposed upon an executor which breached its duty to preserve decedent’s tangible property, as well as the appropriate interest rate to impose with respect to a delay in distributing assets, the Second Department wrote: “[A] nominated executor has the duty to preserve estate assets for the protection of […]
In determining Surrogate’s Court properly determined mortgages secured by notes represented personal property and not “interests in real property” within the meaning of the will, the Second Department wrote: Here, as the Surrogate’s Court properly recognized, notes secured by mortgages are generally construed to be personal property…, and there is nothing in the language of […]
The Second Department explained that an action for fraud can not be based on breach of contract allegations: “The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” […]
The Second Department determined that causes of action alleging fraudulent conveyances pursuant to Debtor & Creditor Law 276 should not have been dismissed on statute of limitations grounds because the defendants failed to establish when plaintiff should have first become aware of the alleged fraud: “A cause of action based upon actual fraud under Debtor […]
In a breach of contract action that had been remitted to Supreme Court, the Second Department determined Supreme Court failed adhere to the terms of the remittitur by failing to calculate interest and express the amount due and owing in accordance with the remittitur. In sending the case back to Supreme Court, the Second Department […]
In affirming the denial of defendant’s motion for summary judgment in a water-on-floor slip and fall case, the Second Department explained that a defendant can not point to gaps in the plaintiff’s case to meet its affirmative proof burdens re: notice and “act of God:” A defendant who moves for summary judgment in a slip-and-fall […]
Plaintiff was struck by defendants’ van as she was crossing a street. In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van. In determining Supreme Court should have granted plaintiff’s […]
In a rear-end collision case, the Second Department determined the allegation that the plaintiff abruptly changed lanes and came to a sudden stop in front of defendant raised a question of fact about plaintiff’s negligence: Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle […]
In determining the plaintiff’s resort to speculation about the cause of her fall required dismissal of the complaint, the Second Department wrote: “In a slip-and-fall case, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the […]
In determining a student’s special education aide, who was standing nearby when the 8-year-old student suddenly placed his fingers inside the hinged side of a bathroom door (thereby immediately suffering injury), could not be liable for negligent supervision, the Second Department wrote: “Schools are under a duty to adequately supervise the students in their charge […]
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