The trial court’s determination the testimony of the 10-year-old plaintiff at a 50-h hearing should not be considered because there was no hearing to determine the infant plaintiff’s testimonial capacity was reversed by the Second Department. “None of the parties challenged the infant plaintiff’s capacity to testify. Under the circumstances, neither the infant plaintiff’s age […]
The Second Department found the evidence in the motion to vacate a default was sufficient: “Here, the moving defendants’ claim of law office failure was supported by a ‘detailed and credible’ explanation of the default. Moreover, the moving defendants demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion. Accordingly, the Supreme Court providently […]
The Second Department held that service upon an employee who was not an officer, director, managing agent, cashier, or an agent authorized to accept service, did not confer jurisdiction over a corporation, and the motion to dismiss for lack of personal jurisdiction should have been granted. Fernandez v Town of Babylon …, Omni Recycling of Babylon, […]
Plaintiff filed a notice of claim and commenced a suit against the City of New York. The complaint was amended to add the New York City Transit Authority as a defendant. The First Department affirmed the dismissal of the complaint against the Transit Authority because no notice of claim against the Transit Authority had been […]
The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required. “The critical question is whether the grand jury failed to indict after a full presentation of the case.” The fact that the prosecutor “withdrew” the charges from the grand […]
In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had […]
The First Department explained and applied the principles of a CPLR 7511 review of a hearing officer’s determination after compulsory arbitration pursuant to the Education Law. The case concerned allegations of inappropriate touching of students by a tenured school librarian. In affirming the hearing officer’s findings and penalty, the Court noted that “ ‘ where […]
A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death. There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked. But in […]
Petitioners had standing to seek review of a planning board’s site plan approval. Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … . Their allegations that the approved construction project will harm their regular use, enjoyment, and […]
The Second Department explained that “[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” in opposing a motion for summary judgment in a slip and fall case. Mahoney vs AMC Entertainment, Inc., 2012-00582, Index No. […]
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