In finding the plaintiff had raised a question of fact about whether the municipality affirmatively created a dangerous condition (a curved section of fence alongside a roadway), the Second Department wrote: Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by […]
The Second Department reversed the grant of summary judgment to the defendant village because the village did not rule out the possibility that the sidewalk defect had been affirmatively created by negligent design and construction, an exception to the requirement that the village have prior notice of a sidewalk defect before a personal injury suit […]
In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote: …[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law […]
In affirming the motion court’s grant of summary judgment to the defendant prime contractor and defendant subcontractors, the Second Department clearly described the relevant proof requirements for Labor Law 200, 240 (1), 241 (6) and common-law negligence causes of action. Giovanniello v E W Howell, Co., LLC, 2013 NY Slip Op 01805, 2011-11465, Ind No 26676/09, […]
The Second Department determined the conviction for “criminal sexual act in the first degree” was against the weight of the evidence because the relevant testimony, although credible, did not prove all the elements of the crime beyond a reasonable doubt: The defendant correctly contends that his conviction of criminal sexual act in the first degree […]
In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.” The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor […]
In reversing the conviction, the Second Department determined two juror challenges for cause should have been granted because the jurors indicated they would tend to give added weight to the testimony of police officers and the court did not seek unequivocal assurances the jurors could set aside their bias. Defendant’s co-defendant’s judgment of conviction was […]
In affirming the grant of summary judgment to the defendant hospital, the Second Department explained the flaws in the plaintiffs’ expert’s affidavit, finding the expert did not lay a foundation for an opinion outside the expert’s area of specialization and made “speculative” and “conclusory” assertions: In opposition, the affidavit of the plaintiffs’ expert did not […]
he Second Department determined the hospital’s (Winthrop-University Hospital’s) motion for summary judgment dismissing the cause of action alleging it was vicariously liable for the actions of a non-employee physician (Raio) should have been granted. The hospital demonstrated that the “emergency room exception” to vicarious liability for the negligence of a non-employee physician did not apply: […]
In an action for breach of contract, waste, injury to real property, trespass, conversion and private nuisance, based upon clearing land of trees pursuant to an unrecorded easement, the Second Department wrote: Pursuant to RPAPL 861(1), a property owner may maintain an action for damages against any person who, without the consent of the owner, […]
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