The Second Department noted that, in opposition to a motion for summary judgment, an unpleaded cause of action (which must be supported by proof in admissible form) may be raised: The plaintiff, in opposition, …raised a new theory of liability …. A plaintiff may successfully oppose a motion for summary judgment by relying on an […]
In this case, the Second Department addressed the proof requirements for a CPLR 3211(a)(1) motion (motion to dismiss on documentary evidence), the potential validity of an unsigned agreement in the context of such a motion, and the proper remedy when a referee exceeds his or her authority: A motion pursuant to CPLR 3211(a)(1) may be […]
The Second Department explained the effect of a referee’s exceeding his or her authority: “A referee derives his or her authority from an order of reference by the court” …. The scope of a referee’s duties are defined by the order of reference (see CPLR 4311;…). A referee “who attempts to determine matters not referred […]
The Second Department determined that it would have been futile for the plaintiffs to apply for a no-income-check mortgage so their failure to do so did not allow the defendants to hang on to the plaintiffs’ down payment: Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of […]
The Second Department explained the criteria for a use variance as follows: “[A] landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” …. Here, [the property owner] failed to show, based on competent financial evidence, that it cannot yield […]
The Second Department explained that the failure to strictly comply with the terms of a lease option (here involving notice to the landlord of the exercise of an option to terminate the lease) can be forgiven if certain criteria are met: An optionee must exercise the option in accordance with its terms, within the time […]
In a legal malpractice action, the Second Department determined the cause of action for fraud should not have been dismissed: …[T]he Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. “To properly plead a cause of action to recover […]
The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining: …[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. People v Barrett, 2013 NY Slip Op 02410, 2011-04637, […]
The Second Department noted the criteria for preemption of state law by the Martin Act: …[T]he Supreme Court properly denied that branch of the defendant’s prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act (see General Business Law art 23-A). Since the plaintiff’s […]
In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote: Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court […]
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