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A DEFENDANT WHO HAS WAIVED INDICTMENT CANNOT PLEAD GUILTY TO A SUPERIOR COURT INFORMATION (SCI) WHICH INCLUDES AN OFFENSE GREATER THAN ANY CHARGED IN THE CORRESPONDING FELONY COMPLAINT (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), over a dissent, determined an SCI cannot include an offense greater than any offense charged in the felony complaint. Here the SCI “charged [defendant] with a higher level offense than any contained in the felony complaint, that is, robbery in […]

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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior […]

ROBERT F KENNEDY, JR’S NOMINATING PETITION DECLARED INVALID (THIRD DEPT).

The Third Department determined that the nominating petition for presidential candidate Robert F. Kennedy, Jr. of the We the People Party was properly declared invalid because the New York residency requirement was not met. The address Kennedy listed as his New York residence was a friend’s home where Kennedy stayed one night: … [B]oth Kennedy […]

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STATE DESIGN DEFECT AND FAILURE TO WARN ACTION IS PREEMPTED BY THE FEDERAL HAZARDOUS MATERIALS TRANSPORTATION ACT (HMTA), CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined the state defective-design and failure-to-warn action stemming from an allegedly defective compressed gas cylinder was preempted by the federal Hazardous Materials Transportation Act (HMTA). …”…  [T]he HMTA’s express preemption provision encompasses state law claims ‘about’ ‘the designing, manufacturing, fabricating, inspecting, marking, […]

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HERE THE FORECLOSURE ABUSE PREVENTION ACT (CPLR 213(4)) ESTOPPED PLAINTIFF FROM ARGUING THE DEBT HAD NOT BEEN ACCELERATED ON A GROUND NOT RAISED AND ADJUDICATED PRIOR TO THE EXPIRATION OF THE STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 213(4)) prohibited plaintiff mortgage company from asserting a defense to dismissal of the foreclosure action on statute-of-limitations grounds which had not been timely raised and adjudicated. Plaintiff tried to argue the debt was not validly accelerated because of a prior dismissal […]

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A DANGEROUS CONDITION, A DOOR WHICH SWUNG CLOSED ABRUPTLY, IS ALLEGED TO HAVE INJURED PLAINTIFF; TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DOOR, THE DEFENDANT MUST SUBMIT EVIDENCE THE DOOR WAS INSPECTED OR MAINTAINED AND FOUND SAFE CLOSE IN TIME TO THE INJURY; THE FAILURE TO SUBMIT SUCH EVIDENCE REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this premises liability case should not have been granted summary judgment. Plaintiff alleged a door closed abruptly, striking her and causing her to fall. The defendants presented no evidence when the door was last inspected or maintained. Therefore the defendants did not demonstrate a lack […]

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THE NYC DEPARTMENT OF EDUCATION PROPERLY DENIED PETITIONER-TEACHER’S REQUEST FOR AN EXTENSION OF AN EXEMPTION FROM THE COVID VACCINE MANDATE BECAUSE THE MANDATE IS NO LONGER IN EFFECT; SUPREME COURT SHOULD NOT HAVE ISSUED AN ADVISORY OPINION TO THE CONTRARY; THE AWARD OF ATTORNEY’S FEES WAS IMPROPER; THE PETITION DID NOT MEET THE CRITERIA FOR AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner, at teacher, was not entitled to an extension of an exemption from the COVID vaccine mandate (denied by the NYC Department of Education) and the award of over $24,000 in attorney’s fees. The vaccine mandate is no longer in force, and the matter did not meet […]

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DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing plaintiff’s complaint, determined defendant was an out-of-possession landlord who was not responsible for the alleged dangerous condition on the property and the Labor Law 240(1) and 241(6) causes of action, although mentioned in the bill of particulars, were not pleaded. Plaintiff was doing work on cabinets when […]

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THE VEHICLE WHICH STRUCK PLAINTIFF’S STOPPED VEHICLE FROM BEHIND FLED THE SCENE BUT WAS IDENTIFIED BY A LICENSE PLATE FOUND AT THE SCENE; DEFENDANT ACKNOWLEDGED OWNERSHIP OF THE VEHICLE BUT DENIED OPERATING IT AT THE TIME OF THE ACCIDENT; THAT ALLEGATION DID NOT OVERCOME THE PRESUMPTION OF PERMISSIVE USE UNDER THE VEHICLE AND TRAFFIC LAW; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end traffic-accident case, determined defendant’s allegation he was not driving his vehicle at the time of the accident did not overcome the presumption of permissive use under Vehicle and Traffic Law section 388(1). The vehicle which struck plaintiffs’ stopped vehicle fled the scene. But defendant admitted the […]

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PLAINTFF’S MOTION TO STRIKE DEFENDANTS’ ANSWER FOR SPOLIATION OF EVIDENCE IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN CONSIDERED BY THE MOTION COURT BEFORE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the motion court should have first considered plaintiff’s (decedent’s) motion to strike defendants’ answer (for spoliation of evidence) before considering defendants’ motion for summary judgment (which was granted). Decedent alleged there was video footage showing the slip and fall which was overwritten […]

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