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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims […]

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CLAIMANT INITIALLY BELIEVED THE ROAD WHERE HE STEPPED IN A POTHOLE AND FELL WAS OWNED BY THE VILLAGE, BUT IN FACT IT WAS OWNED BY THE STATE; CLAIMANT’S LATE NOTICE OF CLAIM SHOULD HAVE BEEN ACCEPTED BY THE COURT OF CLAIMS (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined claimant’s late notice of claim in this roadway defect case should not have been rejected. Plaintiff alleged he stepped in a depression in the road and fell. Plaintiff initially believed the road was owned by the village, when, in fact, it was owned by the state. […]

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HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).

The First Department, reducing defendant’s SORA risk level from three to two, determined (1) the defendant was not given the requisite 10-day notice of the prosecutor’s intent to seek a higher risk level than that recommended by the Board, and (2) defense counsel’s reply to the late notice by the prosecutor did not waive the […]

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WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew its prior motion should not have been denied. The judge had denied the prior motion on procedural grounds “without prejudice to renew:” … Supreme Court improvidently exercised its discretion in denying, on procedural grounds, the plaintiff’s motion for leave to renew its […]

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SUA SPONTE DISMISSAL OF THE COMPLAINT WAS NOT SUPPORTED BY EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances justifying a sua sponte dismissal of the complaint in this foreclosure action: A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not […]

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HERE IN THIS CHILD VICTIMS ACT (CVA) CASE, THE ALLEGATIONS OF ABUSE OF PLAINTIFF BY A TEACHER WERE BASED ON HER INABILITY TO CONSENT UNDER THE PENAL LAW; THEREFORE THE SCHOOL COULD ONLY BE LIABLE FOR NEGLIGENT SUPERVISION UNTIL PLAINTIFF TURNED 17; ALTHOUGH THE ABUSE WAS ALLEGED TO HAVE TAKEN PLACE OFF SCHOOL GROUNDS, THE TEACHER, DURING SCHOOL HOURS, ALLEGEDLY MADE PUBLIC COMMENTS ABOUT PLAINTIFF’S APPEARANCE AND MADE ARRANGEMENTS TO MEET HER AFTER SCHOOL; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent supervision cause of action against the school based upon alleged conduct by a teacher should not have been dismissed, despite the fact the abuse allegedly took place off school grounds: The abuse was alleged to be conduct which would violate article 130 of the Penal […]

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DEFENDANT WAS NOT AN OWNER OR A GENERAL CONTRACTOR AND EXERCISED NO SUPERVISORY AUTHORITY OVER THE INJURED PLAINTIFF’S WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED; HOWEVER DEFENDANT MAY HAVE BEEN RESPONSIBLE FOR CREATING THE ALLEGEDLY DANGEROUS CONDITION DURING PRIOR WORK ON THE PROPERTY; THEREFORE THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the Labor Law causes of action were properly dismissed, the common-law negligence cause of action should not have been dismissed. Defendant BHI was not an owner of the property or a general contractor and was not present on site when plaintiff was injured. The injured […]

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ALTHOUGH THE FORMER “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA)” PROVIDED IMMUNITY TO HEALTHCARE PROVIDERS RE: COVID-19, HERE DEFENDANT NURSING HOME DID NOT DEMONSTRATE THE THREE REQUIREMENTS FOR IMMUNITY WERE MET (SECOND DEPT).

The Second Department reversing Supreme Court, determined defendant nursing home did not demonstrate the three statutory requirements for immunity for COVID-related treatment were met. Plaintiff alleged plaintiff’s decedent, during his admission to defendant’s facility in March 2020, was infected with SARS-CoV-2 and COVID-19: … [T]he EDTPA [Emergency or Disaster Treatment Protection Act] initially provided, with […]

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PLANTIFF HAD NOT INFORMED THE BANKRUPTCY COURT OF THIS PERSONAL INJURY CAUSE OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT PURSUANT TO THE DOCTRINE OF JUDICIAL ESTOPPEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to inform the Bankruptcy Court of this personal injury action triggered the doctrine of judicial estoppel entitling defendants to summary judgment dismissing the complaint: While a chapter 13 bankruptcy debtor has standing to litigate cases that belong to the estate … , here the “[p]laintiff’s prolonged […]

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DEFENDANTS’ CONDOMINIUM WAS DAMAGED BY FIRE FORCING THEM TO LIVE ELSEWHERE FOR A YEAR; THE ALLEGATION PLAINTIFF DID NOT MAKE TIMELY REPAIRS DID NOT RELIEVE DEFENDANTS OF THEIR CONTRACTUAL OBLIGATION TO PAY THE COMMON CHARGES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the fact that defendants’ condominium was damaged by fire, forcing defendants to live elsewhere for a year, did not relieve defendants of the obligation to pay the common charges during that time: … [P]laintiff submitted, inter alia, the declaration of condominium, the condominium bylaws, an affidavit from the […]

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