The Court of Appeals affirmed the appellate division’s ruling that the plaintiff could not recover for injury to her hand resulting from a horse’s jerking its head back when plaintiff was holding the halter. The Court of Appeals wrote: Under the rule of Bard v Jahnke, (6 NY3d 592, 596-597 [2006]), plaintiff cannot recover in […]
he defendant designed plaintiffs’ residence and the first floor was built two feet below what the regulations required resulting in increased flood insurance premiums. In the contract between the parties, it was agreed to limit defendant’s liability to the amount of the fees paid by plaintiffs. After noting that contractual liability-limit clauses are valid and […]
The Third Department determined there were two equally plausible interpretations of the term “sellers” as used in the contract, rendering the contract ambiguous. Therefore, the motion to dismiss the complaint prior to discovery was properly denied. In addition, the Third Department determined that the term “release” (re: hazardous substances) did not extend to the migration […]
In upholding the finding that petitioner had failed to pay the prevailing wage for work done for a school district, the Third Department determined the prevailing wage law was not preempted by the federal Telecommunications Act and the Labor Management Relations Act: Generally, a federal law may supersede a state law where Congress explicitly declares […]
In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:” While the record did not specify the height, the […]
The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that “an at-will, prepayment service agreement, which lacks any obligation to continue services or a commitment to engage in future dealings, [does not] constitute[] a property interest or debt subject to a CPLR 5222 (b) restraining notice:” The Appellate Division here affirmed the […]
The Third Department reviewed an eminent domain proceeding for gas-line easements and determined that the appraisal relied upon by the trial court did not include a sufficient explanation of the valuation methods employed to allow substantive cross-examination. Because the other appraisal offered at trial was rejected by the trial court, the case was remanded. Matter of […]
The question before the Third Department was whether petitioner’s limited liability company, which was a Qualified Empire Zone Enterprise (QEZE) and therefore was entitled to claim credit for “eligible real property taxes,” could also claim credit for a “downtown improvement tax.” The issue was whether the “downtown improvement tax” was an “eligible real property tax.” […]
In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote: Initially, “[w]here a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances […]
In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote: “Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no […]
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