The Second Department noted there is no need to be a shareholder at the time a disputed resolution was adopted to bring an action for waste or breach of fiduciary duty pursuant to Business Corporation Law 720(b): Unlike Business Corporation Law § 626, which authorizes a shareholder to bring a derivative action in the right […]
In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context: … [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 […]
In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote: A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows […]
In reversing Family Court’s denial of a petition for visitation by a noncustodial parent without a hearing, the Second Department determined a hearing must held and no counseling or treatment can be ordered as a condition of future visitation: “[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that […]
The Second Department determined the motion court erred when it found defendant’s excuse for default in appearing or answering adequate: While the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, a general assertion that the default was occasioned by the defendant’s insurance broker or liability carrier is […]
The defendant’s answer in a partition action was struck due to his failure to comply with disclosure requests and court orders. At the inquest the defendant was allowed to cross-examine plaintiff’s witnesses but was not allowed give testimony or offer proof in mitigation of the alleged damages. The Second Department wrote: [A] defendant whose answer […]
The Second Department noted that filing a Notice of Appearance does not waive the lack of personal jurisdiction which can be raised in a motion to dismiss pursuant to CPLR 3211(a)(8) or as a defense in the answer pursuant to CPLR 3211. Frederic v Israel, 2013 NY Slip Op 02049, 2012-03475, Index No 20290/06, 2nd Dept […]
In a full-fledged opinion by Justice Dickerson, the Second Department laid out the requirements for determining a motion to dismiss pursuant to CPLR 3211(a)(7), the elements of the theory of agency, the requirements for a judgment based on documentary evidence pursuant to CPLR 3211(a)(1), and the elements of a cause of action alleging breach of […]
The Second Department affirmed the trial court’s determination that plaintiff was unable to demonstrate the defendant had been validly served using the “nail and mail” method: …[T]he Supreme Court properly granted that branch of the plaintiff’s motion which was to dismiss the complaint pursuant to CPLR. Where service is effected pursuant to CPLR 308(4), the […]
The Second Department determined a court can order a buyout of another’s interest in a limited liability company (LLC) upon judicial dissolution of the LLC: The Limited Liability Company Law “does not expressly authorize a buyout in a dissolution proceeding “ … . Nonetheless, in certain circumstances, a buyout may be an appropriate equitable remedy […]
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