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AT THE FORECLOSURE TRIAL, THE BANK DEMONSTRATED THE RPAPL 1304 NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT BY CERTIFIED MAIL BUT FAILED TO PROVE THE NOTICE WAS ALSO SENT BY REGULAR MAIL; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of mailing of the RPAPL 1304 notice in this foreclosure action was insufficient: “A plaintiff can establish strict compliance with RPAPL 1304 by submitting domestic return receipts, proof of a standard office procedure designed to ensure that items are properly addressed and mailed, or an affidavit […]

PLAINTIFF WAS INJURED WHILE STANDING ON INSTALLED REBAR WHICH WOBBLED AS A CO-WORKER HANDED HIM A PIECE OF REBAR; HE DROPPED THE REBAR BUT GRABBED IT BEFORE IT FELL ANY FURTHER, INJURING HIS SHOULDER; INJURY WHILE ATTEMPTING TO PREVENT AN OBJECT FROM FALLING IS COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff dropped a piece of rebar while standing on installed rebar which wobbled. The rebar fell about one foot before he grabbed it to keep it from falling further, injuring his shoulder. Injury from […]

PLAINTIFF WAS INJURED WHEN A DRILL FELL FROM A CO-WORKER WHO WAS STANDING ON AN A-FRAME LADDER; THE DRILL SHOULD HAVE BEEN TETHERED TO THE CO-WORKER’S PERSON; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this Labor Law 240(1) action was entitled to summary judgment in this falling object case. Plaintiff was struck by a drill which fell from a co-worker standing on an A-frame ladder. The drill should have been tethered to the co-worker’s person: … [T[he coworker’s elevated work […]

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THE INSTALLATION OF A TEMPORARY PEDESTRIAN TRAFFIC SIGNAL AT AN INTERSECTION IS NOT SUBJECT TO THE REQUIREMENT THAT A MUNICIPALITY HAVE WRITTEN NOTICE OF A DEFECTIVE CONDITION; THE COMPLAINT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED BECAUSE THERE WAS NO “WRITTEN NOTICE” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this pedestrian-vehicle accident case should not have been dismissed on the ground the defendant city did not have written notice of the allegedly negligently designed temporary pedestrian signal at an intersection. The written notice requirement does not apply to the failure to maintain or install […]

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THE SIX-MONTH GRACE PERIOD FOR FILING A NEW ACTION AFTER DISMISSAL (CPLR 205 (A)) DOES NOT APPLY IF THE UNDERLYING STATUTE OF LIMITATIONS FOR THE ACTION HAS NOT RUN; PLAINTIFF WAS FREE TO COMMENCE ANOTHER ACTION AFTER DISMISSAL ANYTIME WITHIN THE STATUTE-OF-LIMITATIONS PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint should not have dismissed because the action wasn’t recommenced within six months of dismissal (CLPR 205 (a)) because the statute of limitations on the underlying cause of action had not run. The six months grace period in CPLR 205 (a) only applies when the statute has […]

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THE PROBATION-CONDITION REQUIRING DEFENDANT TO PAY THE MANDATORY SURCHARGE AND COURT FEES WAS STRUCK BECAUSE DEFENDANT IS INDIGENT; THE FACIAL CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS WERE NOT PRESERVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) the challenge to the probation condition that defendant pay the mandatory surcharge and court fees survives the waiver of appeal; (2) the condition should be struck because defendant is indigent; (3) the facial constitutional challenges to probation conditions were not preserved: In determining whether a condition […]

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TWO IRRELEVANT PROBATION CONDITIONS STRUCK, NON-CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS NEED NOT BE PRESERVED; FACIAL CONSTITUTIONAL CHALLENGES SURVIVE A WAIVER OF APPEAL BUT MUST BE PRESERVED; AS-APPLIED CONSTITUTIONAL CHALLENGES ARE PRECLUDED BY THE WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) non-constitutional challenges to probation conditions need not be preserved for appeal; (2) although the facial constitutional challenges to probation conditions survive a waiver of appeal, they were not preserved for appeal; (3), the as-applied constitutional challenges are precluded by the waiver of appeal; and (4) two […]

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NINE OF ELEVEN PROBATION CONDITIONS STRICKEN AS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION, INCLUDING THE CONDITION THAT DEFENDANT PAY THE MANDATORY SURCHARGE AND OTHER FEES (FIRST DEPT).

The First Department determined nine probation conditions must be stricken as not reasonably related to the defendant’s rehabilitation: … [N]ine conditions were “not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life” (… Penal Law § 65.10[1]). There is no evidence that defendant had a history of gang affiliation […]

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT WAS EXEMPT FROM THE NYC SIDEWALK LAW (MAKING ABUTTING PROPERTY OWNERS RESPONSIBLE FOR SIDEWALK MAINTENANCE) BECAUSE HIS PROPERTY IS OWNER-OCCUPIED; HOWEVER THERE IS A QUESTION OF FACT WHETHER DEFENDANT IS LIABLE UNDER THE COMMON-LAW “SPECIAL USE” DOCTRINE; DEFENDANT USED THE SIDEWALK AS A DRIVEWAY FOR HIS GARAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing summary judgment in favor of defendant property owner in this slip and fall case, determined there was a question of fact whither defendant was liable for a sidewalk defect bases upon defendant’s “special use” of the sidewalk as a driveway leading to defendant’s garage. […]

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THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE PLAINTIFF HAD NOT YET BEEN APPOINTED ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE; PLAINTIFF IS FREE TO COMMENCE A NEW ACTION WITHIN SIX MONTHS PURSUANT TO CPLR 205 (A) UPON ISSUANCE OF LETTERS OF ADMINISTRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint should have been dismissed because plaintiff had not yet been appointed administrator of the estate of her mother, but noted that if she obtains letters of administration within the six-month savings period under CPLR 205(a) a new action may be commenced: “A personal representative who […]

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