In reversing a jury verdict finding that a will had been procured by fraud, i.e., a misrepresentation made to the decedent by one daughter, Zucker, against the other daughter, Ranaldo, resulting in the disinheritance of Ranaldo, the Second Department wrote: …[T]here was no evidence presented at trial to demonstrate that Zucker conveyed the alleged misrepresentation […]
In finding the insurer’s (Country-Wide’s) disclaimer of coverage invalid, the Second Department wrote: [County-Wide’s] written disclaimer of coverage was untimely and invalid as a matter of law (see Insurance Law § 3420[d][2]). It is undisputed that [plaintiff] Jose R. Ramirez gave notice of the accident and claim to Country-Wide in a letter dated June 14, […]
The Second Department, in reversing the dismissal of causes of action in a complaint, explained the criteria for dismissal based on documentary evidence: A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a […]
In reversing the trial court’s grant of summary judgment, the Second Department explained that CPLR 2221(a) had been misused to revisit a prior motion, and that the motion should have been brought under CPLR 2221 (e) as a motion for leave to renew based on new facts. The motion should have been denied because the […]
The Second Department reversed the trial court’s sua sponte dismissal of plaintiff’s mortgage foreclosure complaint. The trial court dismissed the complaint on the ground that the plaintiff lacked standing and imposed sanctions based on plaintiff’s alleged reliance upon a “robosigner” (according to the trial court’s own Internet research). On the issues of “sua sponte” dismissal […]
In affirming the grant of a motion to amend a reply to add the “statute of limitations” defense, the Second Department wrote: “Leave to amend a pleading should be freely given (see CPLR 3025[b]), provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid […]
In a case involving a contract of sale for a painting (for 2 million euros), the First Department noted that a prior decision of that same court which stated the standing issue was not preserved for appellate review, and that if the issue were to be considered it would be rejected, was not binding for […]
Plaintiff, an English professor, brought suit for defamation and invasion of privacy based upon two articles in the defendant New York Post and on the websites of two other defendants. In affirming the trial court’s grant of summary judgment to the defendants, the First Department applied the facts of the case to the proof requirements […]
The First Department, in affirming the dismissal of fraud and negligent misrepresentation claims in a contract action, described the flaws in the complaint as follows: The court properly dismissed the fraud claim for failure to plead fraud with the particularity required by CPLR 3016(b) and for failure to plead loss causation … . The court […]
The First Department determined the defendants, who deliberately attempted to avoid notice of the summons and complaint, did not raise an issue of fact in the face of the affidavits of the process server: Relief under CPLR 317 is not warranted where, as here, defendants’ failure to obtain proper notice was the result of a […]
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