The Second Department explained the elements of retaliatory termination as follows: Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices …. To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that […]
The defendant claimed that his confession was involuntary because he was physically abused by the interrogating officer (O’Leary). After his conviction for depraved indifference murder the defendant brought a motion to vacate the conviction on the ground that the interrogating officer had been sued for allegedly extracting a false confession and the prosecution did not […]
In affirming Supreme Court’s determination that petitioner (who pled nolo contendre to a sex offense in Florida and was registered as a sex offender in Florida) must register as a sex offender in New York (upon moving to New York), the Second Department wrote: SORA provides that any “sex offender” must comply with its provisions […]
The Second Department affirmed Supreme Court’s determination that a guarantee which stated “if any defects in manufacturing, materials or workmanship occurred within 10 years the product would be repaired, replaced or purchase price refunded” was not a warranty which extended to future performance within the meaning of UCC 2-725[2]. The four-year UCC statute of limitations […]
In a complicated breach of contract action arising out of construction projects for defendant school district, the Second Department determined contribution and indemnification were unavailable for purely economic loss from breach of contractual obligations (CPLR 1401, 1403, 3019). In addition, the Second Department determined that the need to file a notice of claim pursuant to […]
After noting that a cause of action for fraud does not lie when it is based on the same allegations stated in a breach of contract cause of action, the Second Department explained the pleading requirements in a fraud action, including the need for “detail,” as follows: A cause of action to recover damages for […]
In finding that the funds held in a bank account in the name of “Ann Sledjeski or Thomas Sledjeski” should have been turned over to pay Thomas Sledjeski’s debt, the Second Department wrote: The Supreme Court should have granted the unopposed petition pursuant to CPLR 5225(b) to direct Hudson City Savings Bank to turn over […]
In a full-fledged opinion by Justice Dillon, the Second Department discussed, in great detail, the relevant statutes and case law concerning the venue provisions in the CPLR and venue as mandated in the New York City Health & Hospitals Corporation (NYCHHC) Act. The Second Department determined NYCHHC Act’s statutorily-mandated venue is not jurisdictional and can […]
In affirming the denial of a motion to amend a complaint the Second Department described the law concerning amendment (CPLR 305) and “relation back” (CPLR 203): CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party […]
In a hybrid proceeding— an Article 78 proceeding to review a Town Board’s stop work order for a quarry acting without a permit, and a related declaratory judgment action—the Second Department determined Supreme Court could not dismiss the declaratory judgment action as if it were part of the Article 78 proceeding. The two actions must […]
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