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PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action was time-barred but the related nuisance and trespass actions constituted “continuing wrongs” and therefore were not time-barred. Plaintiff alleged defendant did construction work on defendant’s property which caused water to encroach on plaintiff’s property. Because the construction work was done more than […]

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AFTER BEING TOLD THE PREMISES WAS NOT DEFENDANT’S RESIDENCE, THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE TO DETERMINE WHERE DEFENDANT RESIDED BEFORE RESORTING TO NAIL-AND-MAIL SERVICE; THE DEFAULT JUDGMENT AGAINST DEFENDANT VACATED (FIRST DEPT).

The First Department determined plaintiff failed to show defendant Lopez was properly served at the traverse hearing. The default judgment against Lopez was vacated. The decisions provides a rare opportunity to look inside a traverse hearing: During the traverse hearing, plaintiff’s process server testified that he posted the summons and complaint on the door of […]

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THE EVIDENCE WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; BRICK WORK WAS BEING DONE ON THE BUILDING ABOVE WHERE PLAINTIFF WAS STANDING AND PLAINTIFF WAS STRUCK BY A FALLING BRICK; THERE WAS NO SAFETY NETTING TO PROTECT AGAINST FALLING OBJECTS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this falling object case. Plaintiff was unloading a truck in a designated “delivery zone” near the building where bricks were being drilled out to accommodate […]

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THE HEARSAY MISBEHAVIOR REPORT, UNSUPPORTED BY ANY INVESTIGATION, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE OF PETITIONER’S GUILT; DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination, held that the hearsay misbehavior report which was not substantiated by an investigation was insufficient to support guilty finding: “[H]earsay misbehavior reports can constitute substantial evidence to support a determination of guilt so long as the evidence has sufficient relevance and probative value” … . Here, the correction officer […]

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT DISMISSING THE ALTER-EGO (PIERCE-THE-CORPORATE VEIL) CLAIMS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Shulman, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether the corporate veil should be pierced. The court explained the relevant criteria: A party seeking to pierce the corporate veil must show “complete domination of the corporation in respect to the […]

THERE IS A QUESTION OF FACT WHETHER DEFENDANTS LAUNCHED AN INSTRUMENT OF HARM BY ERECTING AN OPAQUE FENCE AROUND A CONSTRUCTION SITE WHICH BLOCKED DRIVERS’ AND PEDESTRIANS’ LINES OF SIGHT IN AN INTERSECTION; PLAINTIFF PEDESTRIAN WAS STRUCK BY A CAR WHEN HE STEPPED BEYOND THE FENCE INTO A LANE OF TRAFFIC (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendant general contractor and defendant engineer launched an instrument of harm by erecting an opaque fence around a construction site which extended into a road parallel to the crosswalk. Plaintiff, a pedestrian, assumed the fence had blocked off the road to […]

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BURGLARY SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; DEFENDANT’S SEX OFFENDER ADJUDICATION VACATED (FIRST DEPT).

The First Department, vacating defendant’s sex offender adjudication, noted that burglary second degree as a sexually motivated felony is not a registrable sex offense on SORA: As the People concede, burglary in the second degree as a sexually motivated felony is not a registrable sex offense under Sora (see People v Conyers, 212 AD3d 417, […]

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THE DECLARATORY RULING BY THE PUBLIC SERVICE COMMISSION (PSC) WAS FINAL AND THEREFORE WAS A PROPER SUBJECT OF AN ARTICLE 78 PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the ruling by the Public Service Commission (PSC) was ripe for an Article 78 review and, therefore, the PSC’s motion to dismiss the petition should not have been granted. The declaratory ruling by the PSC was final and could not be altered by he PSC: […]

THE COVID EXECUTIVE ORDERS TOLLING STATUTES OF LIMITATIONS EXTENDED THE DEADLINE FOR FILING ACTIONS UNDER THE CHILD VICTIMS ACT UNTIL NOVEMBER 12, 2021 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the executive orders tolling statutes of limitations during COVID extended deadline for filing Child Victims Act suits for 90 days, from August 14, 2021, to November 12, 2021, rendering the instant lawsuit timely filed: CPLR 214-g, enacted as part of the CVA, provides a revival window for “civil […]

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FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE CASE BECAUSE THE APPELLANT DID NOT HAVE AN “INTIMATE RELATIONSHIP” WITH THE SUBJECT CHILDREN WITHIN THE MEANING OF FAMILY COURT ACT 812 (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did not have subject matter jurisdiction in this family offense case because the appellant did not have an “intimate relationship” with the subject children within the meaning of Family Court Act 812: The “Family Court is a court of limited jurisdiction, constrained to exercise only those […]

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