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DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff: “A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for […]

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​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE NYS HUMAN RIGHTS LAW; PLAINTIFF’S SECOND COMPLAINT STATED A CAUSE OF ACTION UNDER THE SAME STATUTE; THE SECOND COMPLAINT WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for employment discrimination under the New York State Human Rights Law (NYSHRL). Plaintiff had filed a prior complaint which was properly dismissed for failure to state a cause of action. Plaintiff then filed the instant complaint under the same statute by on […]

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ALTHOUGH THE BACKHOE WHICH COLLIDED WITH PLAINTIFF’S VEHICLE HAD BEEN USED FOR ROADWORK THAT DAY, AT THE TIME OF THE ACCIDENT THE BACKHOE WAS BEING USED TO TRANSPORT GRAVEL TO THE WORK SITE; THE SECOND DEPARTMENT DETERMINED THE BACKHOE WAS NOT “ACTIVELY ENGAGED” IN ROADWORK AT THE TIME OF THE ACCIDENT AND, THEREFORE, THE HIGHER “RECKLESS DISREGARD” STANDARD FOR LIABILITY IN THE VEHICLE AND TRAFFIC LAW DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, determined the county employee who rear-ended the plaintiff’s vehicle with a backhoe was not engaged in road construction work within the meaning of the Vehicle and Traffic Law at the time of the accident and, therefore, was not subject to the higher […]

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THE NOTICE TO ADMIT SOUGHT CONCESSIONS THAT WENT TO THE ESSENCE OF THE CONTROVERSY AND THEREFORE WAS PALPABLY IMPROPER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice to admit in this breach of contract action was palpably improper: CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted … . However, […]

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PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the county based upon the alleged assault and battery of plaintiff by police officers should have been dismissed. Assault and battery stem from intentional, not negligent, acts. The assault and battery allegations properly survived summary judgment, however: … [T]he defendants established […]

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THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas: The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that […]

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THE ORAL AGREEMENT BETWEEN PLAINTIFF AND HER MOTHER REQUIRING MOTHER TO TRANSFER FUNDS TO THE PLAINTIFF COULD HAVE BEEN COMPLETED WITHIN A YEAR AND THEREFORE DID NOT VIOLATE THE STATUTE OF FRAUDS; THE RELATED BREACH OF CONTRACT AND TORTIOUS INTERFERENCE WITH CONTRACT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that an oral agreement to distribute funds to the plaintiff did not violate the statute of frauds because the agreement could have been fulfilled within a year. The related breach of contract and tortious interference with contract causes of action should not have been dismissed: … [T]he […]

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THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Susan K., a psychiatric patient, did not voluntarily waiver her right to counsel in this proceeding to provide treatment without her consent: … [T]he petitioner commenced this proceeding for permission to administer electro-convulsive therapy and various proposed psychotropic drugs to Susan K., a patient at a psychiatric facility, […]

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IN THIS TRAFFIC ACCIDENT CASE, THE PASSENGER IN PLAINTIFF’S CAR EXECUTED A RELEASE IN FAVOR OF PLAINTIFF-DRIVER; DEFENDANT’S COUNTERCLAIM FOR CONTRIBUTION FROM PLAINTIFF FOR ANY INJURY SUFFERED BY THE PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by the passenger (Jelissa) in favor of the plaintiff-driver (Nicole) required the dismissal of the defendant’s counterclaim seeking contribution for any injuries suffered by Jelissa: Pursuant to General Obligations Law § 15-108(b), “[a] release given in good faith by the injured person to one tortfeasor […]

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THE ATTORNEY FOR PLAINTIFF IN A PERSONAL INJURY ACTION WAS DISCHARGED WITHOUT CAUSE AFTER A SETTLEMENT HAD BEEN REACHED; THE ATTORNEY SHOULD NOT HAVE BEEN AWARDED A JUDGMENT FOR THE CONTINGENCY FEE; RATHER THE ATTORNEY SHOULD HAVE BEEN AWARDED A CHARGING LIEN PURSUANT TO THE JUDICIARY LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the attorney (Sparrow) who was discharged without cause after a settlement was reached in a personal injury action should have been awarded a charging lien, not a judgment against the former client (Messina): “An attorney of record who is discharged without cause possesses a charging lien pursuant […]

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