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AS PLAINTIFF WAS REMOVING DUCTS FROM THE CEILING, A PORTION OF A DUCT STRUCK PLAINTIFF AND THE A-FRAME LADDER CAUSING HIM AND THE LADDER TO FALL TO THE FLOOR; IT IS ENOUGH THAT THE LADDER WAS “UNSECURED;” PLAINTIFF NEED NOT SHOW THE LADDER WAS DEFECTIVE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was provided with an A-frame ladder to remove duct work from the ceiling. A portion of the duct fell causing the ladder to tip and plaintiff fell to the […]

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A DECEASED PARTY’S ADMISSIONS ARE NOT HEARSAY AS AGAINST THAT PARTY’S ESTATE AND SUPPORT THE PETITIONER-ESTATE’S CONSTRUCTIVE TRUST CLAIM; THE ATTORNEY FOR THE RESPONDENT ESTATE WAS PRESENT DURING DISCUSSIONS AT THE HEART OF THE CONSTRUCTIVE TRUST CLAIM AND MUST BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE (FIRST DEPT). ​

The First Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Friedman, determined summary judgment dismissing the constructive trust cause of action and denying the motion to disqualify counsel because he would necessarily be a witness should not have been granted. Mother, Isabel, alleged, as Medicaid planning, she transferred $1.6 million to her daughter, […]

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ALTHOUGH SUCCESSIVE SUMMARY JUDGMENT MOTIONS ARE DISFAVORED; HERE THE ISSUES IN EACH MOTION DID NOT OVERLAP AND APPELLANTS OFFERED A SUFFICIENT REASON. I.E. THE FIRST MOTION PRECEDED DEFENDANT’S DEPOSITION IN WHICH HE ADMITTED SWERVING INTO APPELLANTS’ VEHICLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined appellants’ second summary judgment motion in this traffic accident case did not violate the prohibition of successive motions. The first motion dealt with whether plaintiff suffered a serious injury within the meaning of the Insurance Law. The second motion addressed defendant’s liability. Appellants demonstrated a sufficient reason for […]

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HERE FAMILY COURT ABUSED ITS DISCRETION BY DENYING FATHER’S “CHANGE IN CIRCUMSTANCES” PETITION WITHOUT A HEARING AND REQUIRING FATHER TO PAY MOTHER’S COUNSEL’S FEES EXCEEDING $12,000 BASED UPON A FINDING THAT FATHER HAD CONSUMED ALCOHOL IN VIOLATION OF A COURT DIRECTIVE; FAMILY COURT SHOULD HAVE FOCUSED ON THE BEST INTERESTS OF THE CHILD, NOT “THE NEED TO REGAIN MOTHER’S TRUST” (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have focused on evidence father may have consumed alcohol in violation of the court’s directive and should have focused on the best interests of the child. Based solely on finding father had consumed alcohol and in the absence of a violation petition, father’s petition […]

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FAMILY COURT HAS THE DECISION-MAKING AUTHORITY TO DETERMINE THE APPROPRIATENESS OF A CHILD’S PLACEMENT IN A QUALIFIED RESIDENTIAL TREATMENT PROGRAM (QRTP) AT EVERY PERMANENCY HEARING (FIRST DEPT).

The First Department, applying an exception to the mootness doctrine (appellate relief had already been granted), determined Family Court has the decision-making authority to determine the appropriateness of a child’s placement in a Qualified Residential Treatment Program (QRTP) at every permanency hearing: … [W]e find that Family Court has the decision-making authority as to the […]

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THE EDUCATION LAW PROVISIONS AND RELATED REGULATIONS (1) REQUIRING NONPUBLIC SCHOOLS TO PROVIDE EDUCATION EQUIVALENT TO THAT PROVIDED BY PUBLIC SCHOOLS, AND (2) ALLOWING PUBLIC FUNDING TO BE CURTAILED AND REQUIRING STUDENTS TO ATTEND A DIFFERENT SCHOOL IF THE EQUIVALENCY TEST IS NOT MET ARE VALID AND ENFORCEABLE; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Garry, over a dissent, determined the regulations promulgated by the Commissioner of Education concerning the evaluation of nonpublic schools and the cutting-off of services provided to those schools if they don’t meet the “equivalent-to-public-schools” test are valid and enforceable. The petitioners here […]

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DEFENDANT IN THIS MED MAL CASE WAS NOT PROPERLY SERVED AND PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF THE TIME TO SERVE IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this medical malpractice case was entitled to dismissal of all claims because he was not properly served: Defendant Michael B. Shannon, M.D. contends that this action should have been dismissed as against him for lack of timely service under CPLR 306-b … . It is undisputed […]

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DEBRIS LEFT BEHIND AFTER WORK ON ANOTHER PROJECT WAS NOT “INTEGRAL” TO THE WORK PLAINTIFF WAS PERFORMING WHEN HE TRIPPED AND FELL; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON CERTAIN LABOR LAW 241(6) CAUSES OF ACTION BASED UPON INDUSTRIAL CODE VIOLATIONS; IN ADDITION THE CITY DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEBRIS; THEREFORE THE LABOR LAW 200 AND COMMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on certain Labor Law 241(6) causes of action and the city’s motion to dismiss the Labor Law 200 and common-law negligence claims should not have been granted. Plaintiff tripped on discarded plastic and rock debris from prior sidewalk demolition and construction. […]

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT THE BUSINESS RECORDS RELEVANT TO DEFENDANT’S DEFAULT, RENDERING THE AFFIDAVIT ALLEGING DEFENDANT’S DEFAULT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not prove defendant’s default in this foreclosure action because the relevant business records were not attached to the motion papers: “In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid […]

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PLAINTIFFS’ ALLEGATION THAT THE WATER MAIN ON DEFENDANTS’ NEIGHBORING PROPERTY BROKE CAUSING WATER TO ENTER PLAINTIFFS’ BASEMENT STATED A NEGLIGENCE CAUSE OF ACTION UNDER THE RES-IPSA-LOQUITUR THEORY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation that defendants’ water main broke causing water to enter plaintiffs’ basement supported a negligence action based on the res-ipsa-loquitur theory. The trespass and private nuisance causes of action should have been dismissed because there was no evidence of defendants’ intentional conduct: … [D]efendants failed to […]

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