In this slip and fall case, the First Department determined the wrong address in the notice of claim, under the facts, was not intended to mislead and did not prejudice the defendant: In this trip and fall action, plaintiff’s notice of claim listed the wrong street address… in describing the location of her fall on […]
In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows: With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the […]
In upholding Supreme Court’s annulment of the village Zoning Board of Appeal’s denial of petitioner’s application for a site capacity variance, the Second Department described the review criteria as follows: Generally, local zoning boards have broad discretion in deciding applications… . “Courts may set aside a zoning board determination only where the record reveals that […]
The Second Department determined the statute of frauds barred the real-property-related action and, since the action was brought “at law,” the equitable “part performance” doctrine could not be applied: Here, the County established, prima facie, that there is no extant writing subscribed by the County or its agent referencing an alleged oral agreement involving real […]
In a full-fledged opinion by Justice Leventhal, the Second Department determined that the plaintiff had pled a valid “anticipatory repudiation” cause of action and that the four-year UCC statute of limitations applied. The case concerned the return (for a refund) of drugs when the expiration date is close or has passed. The plaintiff brought the […]
The Second Department affirmed the dismissal of a contractor’s “breach-of-contract” and “quantum-meruit” causes of action because the contractor was not licensed, and thereby forfeited his right to recover: Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits […]
In reversing the denial of suppression, reversing the conviction and dismissing the indictment, the Second Department explained that the arrest based on out of state warrant (for a violation of probation) was not authorized. A local criminal court warrant was required: The detective had no authority to arrest the defendant based on his information that […]
In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained: …[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed […]
The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding: First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, […]
The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause: Although, generally, a […]
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