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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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PLAINTIFF ALLEGED HE WAS KNOCKED TO THE GROUND BY DEFENDANTS’ DOG; DEFENDANTS DEMONSTRATED THEY WERE NOT AWARE OF AND SHOULD NOT HAVE BEEN AWARE OF THE DOG’S VICIOUS PROPENSITIES AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT TO THE CONTRARY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “plaintiff knocked to the ground by a dog” action should have been granted. Plaintiff was unable to raise a question of fact in the face of defendants’ proof they were not aware of, and should not have been aware of, the […]

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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law: “To establish a cause of action […]

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HERE THE NATURE OF INFANT PLAINTIFF’S INJURIES WAS PROBATIVE OF HOW THE ACCIDENT OCCURRED; PLAINTIFF ALLEGED DEFENDANTS’ VAN RAN OVER INFANT PLAINTIFF’S FOOT; DEFENDANTS ALLEGED INFANT PLAINTIFF WAS INJURED WHEN SHE FELL OFF HER BICYCLE; PLAINTIFFS’ MOTION FOR A UNIFIED TRIAL ON LIABILITY AND DAMAGES SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the denial of plaintiffs’ motion for a unified trial on liability and damages was an abuse of discretion. Plaintiffs alleged defendants’ van ran over infant plaintiff’s foot. Defendants alleged infant plaintiff was injured when she fell off her bicycle. Because the nature of the injury was relevant to […]

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A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s injury while he was cutting a tree was not covered by Labor Law 240 (1). Plaintiff, a county parks department employee, argued that the tree cutting and removal was part of a larger construction project, i.e., setting up a holiday light show: “Labor Law § 240(1) […]

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THE TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY PROPERLY DETERMINED THAT A SENIOR HOUSING PROJECT WAS ENTITLED TO FINANCIAL ASSISTANCE UNDER THE NEW YORK STATE INDUSTRIAL DEVELOPMENT AGENCY ACT (SECOND DEPT).

The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Duffy, determined a senior housing project was entitled to financial assistance under the authority of the New York State Industrial Development Agency Act, affirming the ruling of the Town of Babylon Industrial Development Agency: The issue on appeal, an issue […]

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IN THIS PARKING LOT SLIP AND FALL CASE, THE DEFENDANTS FAILED TO PROVE WHEN THE AREA WAS LAST INSPECTED OR CLEANED OF ICE AND SNOW; THEREFORE DEFENDANTS DID NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE ICY CONDTION AND SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall action and denying defendants’ summary judgment motion, determined defendants did not demonstrate they did not have constructive notice of the icy condition. To demonstrate a lack of constructive notice, a defendant must prove the area of the slip and fall was recently inspected or […]

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DEFENDANTS OPENED A COMPETING HAIR SALON AND WRONGFULLY ACCESSED PLAINTIFF’S ACCOUNT SOFTWARE TO BOOK CLIENTS; THE COMPLAINT STATED CAUSES OF ACTION FOR TRESPASS TO CHATTELS, TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS AND BREACH OF THE EMPLOYMENT CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s causes of action for trespass to chattels, tortious interference with business transactions and breach of contract should not have been dismissed. Plaintiff alleged defendants opened a competing hair salon and accessed and used plaintiff’s computer program for booking clients by using plaintiff’s username and password: […]

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