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AFTER STOPPING THE CAR OCCUPIED BY TEENAGERS AND ARRESTING THE DRIVER AND A PASSENGER, THE POLICE RELEASED THE CAR TO DEFENDANT WHO WAS NOT AUTHORIZED TO DRIVE A CAR WITH MORE THAN ONE PASSENGER UNDER 21; THE DEFENDANT DRIVER THEN HAD AN ACCIDENT: THERE IS A QUESTION OF FACT WHETHER THE POLICE BREACHED A SPECIAL DUTY OWED THE INJURED PLAINTIFF (SECOND DEPT). ​

The Second Department determined: (1) the action against the town police department should have been dismissed because the police department cannot be sued as an entity separate from the town; and (2) the action against the town properly survived summary judgment. The police had stopped a car occupied by teenagers and arrested the driver and […]

October 13, 2021 /0 Comments/by
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PLAINTIFF RELIED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s proof of standing was insufficient because it was based on business records which were not produced: [The] assertion that the plaintiff’s predecessor in interest was the holder of the note when it commenced this action is based upon unproduced business records, and is therefore not probative […]

October 13, 2021 /0 Comments/by

PLAINTIFF ALLEGED HE WAS STRUCK BY A BRICK WHICH RICOCHETED OUT OF A CHUTE USED FOR DUMPING DEBRIS FROM THE UPPER FLOORS OF A BUILDING UNDERGOING DEMOLITION; THE CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant general contractor’s motion for summary judgment on the Labor Law 240(1) and 241(6) causes of action should not have been granted. During the demolition of a building plaintiff (allegedly) was struck by a brick which ricocheted out of a chute used for dumping debris from the […]

October 13, 2021 /0 Comments/by
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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS RESPONSIBLE FOR INTIMIDATING WITNESSES SUCH THAT OUT-OF-COURT STATEMENTS BY THOSE WITNESSES WERE ADMISSIBLE; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO EXERCISE PEREMPTORY CHALLENGES TO JURORS ALREADY ACCEPTED BY THE DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined (1) the People did not demonstrate the defendant was responsible for the intimidation of witnesses by others; and (2), the People should not have been allowed to exercise peremptory challenges to jurors after those jurors had been accepted by the defense: “The purpose […]

October 13, 2021 /0 Comments/by
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THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to suppress should have been granted in this street stop case. The police officers’ observations of defendant, pursuant to the DeBour criteria, did not justify approaching him and asking whether a bag on the counter in a store belonged to him. There […]

October 13, 2021 /0 Comments/by
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WHERE (1) THE DISPUTE IS ABOUT WHETHER THE TENANT IS OBLIGATED TO REMOVE PROPERTY FROM THE PREMISES, (2) THE TENANT TIMELY SURRENDERS THE PREMISES, AND (3), THE LEASE IS SILENT ABOUT THE PAYMENT OF RENT AFTER THE TERM OF THE LEASE, USE AND OCCUPANCY DAMAGES ARE NOT AVAILABLE TO THE LANDLORD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined “use and occupancy” is not an available measure of damages where the tenant timely surrendered the premises and there was nothing in the lease about additional rent after the term of the lease. The dispute here was whether the lease obligated the tenant to remove property from […]

October 12, 2021 /0 Comments/by
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SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIMS; THE CONDUCT OCCURRED WHEN PLAINTIFF WAS NOT PHYSICALLY IN NEW YORK AND DID NOT HAVE ANY IMPACT ON THE TERMS, CONDITIONS OR EXTENT OF HER EMPLOYMENT WITHIN NEW YORK; THE FACTS WERE NOT DESCRIBED (FIRST DEPT).

​The First Department, reversing Supreme Court, determined the court did not have subject matter jurisdiction over the hostile work environment claims under the Human Rights Law. The facts were not explained. The conduct occurred when plaintiff was “physically situated outside of New York” and did not have any impact on the “terms, conditions or extent […]

October 12, 2021 /0 Comments/by

A CONVERSION CAUSE OF ACTION FOR ITEMS LAWFULLY IN DEFENDANT’S POSSESSION WILL NOT LIE UNLESS PLAINTIFF FIRST DEMANDED THEIR RETURN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined some of plaintiff’s conversion allegations did not state a cause of action. Apparently plaintiff had created a website for defendant which included photographs, design and coding. Because the website, photographs, design and coding were lawfully in the possession of defendant, and plaintiff did not demand their return, […]

October 12, 2021 /0 Comments/by
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EVEN A UBIQUITOUS “DE MINIMUS” VIOLATION OF THE VEHICLE AND TRAFFIC LAW IS VALID JUSTIFICATION FOR A PRETEXTUAL TRAFFIC STOP; HERE THE LICENSE PLATE FRAME OBSCURED “GARDEN STATE” ON THE NEW JERSEY LICENSE PLATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the pretextual traffic stop was valid and defendant’s suppression motion should not have been denied on that ground. Apparently the license-plate frame obscured New Jersey’s nickname “Garden State” on the plate, which constitutes a violation of Vehicle and Traffic Law 402(1)(b): The trial court’s concerns of permitting police […]

October 12, 2021 /0 Comments/by
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THIS PRODUCTS LIABILITY (DEFECTIVE DESIGN) ACTION AROSE FROM THE ROLLOVER OF A VEHICLE MADE BY DEFENDANT FORD; PLAINTIFF’S EXPERT’S AFFIDAVIT ALLEGING THE VEHICLE WAS UNSAFE AND PRONE TO ROLLOVERS WAS CONCLUSORY AND THEREFORE DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s expert’s conclusory affidavit alleging defendant’s vehicle was unsafe did not raise a question of fact in this products liability action stemming from the rollover of a vehicle made by defendant (Ford): The defective design claim should have been dismissed because plaintiff failed to rebut defendant’s prima facie […]

October 12, 2021 /0 Comments/by

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