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, […]
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 […]
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