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THE CAUSE OF ACTION SEEKING THE IMPOSITION OF A CONSTRUCTIVE TRUST TO PREVENT UNJUST ENRICHMENT SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF WIFE ENTERED A SETTLEMENT AGREEMENT REQUIRING PAYMENTS BY HER EX-HUSBAND; AFTER HER EX-HUSBAND’S DEATH HIS CHILDREN ALLEGEDLY EMPTIED THE ESTATE OF ASSETS, THEREBY PREVENTING THE FULFILLMENT OF THE TERMS OF THE SETTLEMENT AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action alleging the existence of a constructive trust to prevent unjust enrichment should not have been dismissed. Plaintiff and her deceased ex-husband entered a settlement agreement in which plaintiff would be entitled to certain payments until 2020 and 2023. Plaintiff’s ex-husband died in 2017 and […]

September 16, 2020 /0 Comments/by
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PLAINTIFF BANK DID NOT LAY A SUFFICIENT FOUNDATION FOR BUSINESS RECORDS SUBMITTED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because the evidence of compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 was insufficient: The plaintiff in this mortgage foreclosure action, on its motion, inter alia, for […]

September 16, 2020 /0 Comments/by
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THE MOTION TO DISMISS THE BREACH OF CONTRACT CAUSE OF ACTION BASED ON DOCUMENTARY EVIDENCE DID NOT ESTABLISH A DEFENSE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should not have been dismissed: … [T]he plaintiff stated a cause of action, in effect, to recover damages for breach of contract based on an alleged breach of the implied covenant of good faith and fair dealing […]

September 16, 2020 /0 Comments/by
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CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED PRIMARILY BECAUSE THE MEDICAL RECORDS PROVIDED THE STATE WITH TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ motion for leave to file a late notice of claim pursuant to Court of Claims Act 10(6) in this medical malpractice action should have been granted, primarily because the state had timely knowledge of the nature of the claim and was not prejudiced by the […]

September 16, 2020 /0 Comments/by
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DEFENDANTS’ MOTION TO DISMISS CLAIMS NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY GRANTED; MOTION TO AMEND THE NOTICE OF CLAIM AND MOTION FOR LEAVE TO FILE A LATE NOTICE PROPERLY DENIED; JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE CLAIM FOR LOSS OF SERVICES BECAUSE THAT RELIEF WAS NOT REQUESTED (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss claims that were not in the notice of claim was properly granted, and plaintiffs’ motions to amend the notice of claim and for leave to file a late notice of claim were properly denied. The Second Department noted that the loss of services claim should not have […]

September 16, 2020 /0 Comments/by
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THE ONLY WAY TO COMPEL A JUDGE TO SIGN A DOCUMENT TO CREATE AN APPEALABLE PAPER IS A MANDAMUS ACTION PURSUANT TO ARTICLE 78; THE FAILURE TO BRING THE ARTICLE 78 PROCEEDING PRECLUDED APPEAL IN THIS CASE; THE OPINION INCLUDES A COMPREHENSIVE EXPLANATION OF WHAT THE REQUIREMENTS OF AN APPEALABLE PAPER ARE AND SHOULD BE CONSIDERED DEFINITIVE ON THE TOPIC (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a concurrence, determined the plaintiffs’ only option when the judge refused to sign the transcript of the oral decision (CPLR 2219) and, in the alternative, refused to sign the proposed order with notice of settlement (22 NYCRR 202.48[a]), was a mandamus proceeding to compel the […]

September 16, 2020 /0 Comments/by
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DEFENDANTS’ FAILURE TO SERVE A CONFERENCE SCHEDULING ORDER ON PLAINTIFFS, WHICH APPARENTLY RESULTED IN THE PLAINTIFFS NOT ATTENDING THE CONFERENCE, DID NOT JUSTIFY THE DISMISSAL OF DEFENDANTS’ FULLY SUBMITTED SUMMARY JUDGMENT MOTION WHICH MUST BE DECIDED ON THE MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have dismissed defendants’ summary judgment motion in this car accident case because defendants apparently did not serve an order scheduling a conference on the plaintiffs. Apparently the defendants appeared at the conference but the plaintiffs did not: 22 NYCRR 202.27 governs what a court […]

September 16, 2020 /0 Comments/by
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THE DEFENDANT BANK’S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE A MORTGAGE SHOULD HAVE BEEN GRANTED; THE BANK PROVED THE DE-ACCELERATION NOTICE WAS PROPERLY TRANSMITTED TO PLAINTIFF, RENDERING THE UNDERLYING FORECLOSURE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court in plaintiff’s action to discharge and cancel a mortgage pursuant to RPAPL 1501 (4), determined defendant bank demonstrated that the de-acceleration notice were properly transmitted to plaintiff, rendering the defendant bank’s underlying foreclosure action timely: Wells Fargo’s vice president of loan documentation averred that she was familiar with the mailing […]

September 16, 2020 /0 Comments/by
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DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED; CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s scheme to defraud conviction, determined defendant should not have been precluded from calling witnesses in good faith: “Pursuant to Penal Law § 155.15(1) [i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made […]

September 16, 2020 /0 Comments/by
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THREE OF THE FOUR VEHICULAR HOMICIDE COUNTS WERE MULTIPLICITOUS EVEN THOUGH THEY INVOLVED DIFFERENT SUBDIVISIONS OF VEHICLE AND TRAFFIC LAW 1192; THE DWI AND DWAI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR HOMICIDE SECOND DEGREE (SECOND DEPT).

The Second Department determined three counts of vehicular homicide were multiplicitous and the DWI and DWAI counts were inclusory concurrent counts of vehicular homicide second degree: While the People contend that each count of vehicular manslaughter required them to prove additional facts that the others did not, in fact, the People were only required to […]

September 16, 2020 /0 Comments/by

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