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THE DEFENDANT’S AFFIDAVIT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WHICH UTTERLY REFUTED THE ALLEGATIONS IN THE COMPLAINT; EVEN THOUGH DEFENDANT MIGHT WIN AT THE SUMMARY JUDGMENT STAGE, THE PROOF REQUIREMENTS FOR DISMSSAL ARE DIFFERENT AND WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant contractor’s motion to dismiss the complaint against him individually should not have been granted. Defendant, Gabbay, executed the subject home renovation contract on behalf of “Dansha Corp.,” an entity which does not exist. Defendant asserted in an affidavit submitted to support the motion to dismiss, that “Dansh […]

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THE PAVING CONTRACTOR FAILED TO DEMONSTRATE IT DID NOT LAUNCH AN INSTRUMENT OF HARM (A LIP OR HEIGHT DIFFERENTIAL IN THE ROAD SURFACE) WHICH CAUSED PLAINTIFF’S SLIP AND FALL; THEREFORE THE CONTRACTOR DID NOT NEGATE THE APPLICABILITY OF THE ESPINAL EXCEPTION TO THE RULE THAT CONTRACTORS ARE GENERALLY NOT LIABLE TO THIRD PARTIES (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined the defendant paving company (DeBartolo) failed to eliminate a question of fact about whether it created the dangerous condition (i.e., launched the instrument of harm) which is alleged to have caused plaintiff’s slip and fall. The complaint alleged DeBartolo paved over existing pavement, created the height-differential over […]

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LYFT WAS NOT VICARIOUSLY LIABLE FOR THE ALLEGED SEXUAL ASSAULT BY A LYFT DRIVER; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUD BASED UPON THE ASSURANCES OF SAFETY ON LYFT’S WEBSITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the vicarious liability and fraud causes of action against defendant Lyft, a livery cab service, should have been dismissed. The complaint alleged infant plaintiff used a mobile app to hire a Lyft driver, Singh, who began masturbating after she got in the car. The complaint failed to […]

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THE APPEAL WAIVER WAS INVALID; ALTHOUGH DEFENDANT WAS SUFFERING FROM MENTAL ILLNESS AND WAS APPARENTLY ATTEMPTING TO COMMIT SUICIDE WHEN HE CAUSED THE TRAFFIC ACCIDENT RESULTING IN THE ASSAULT CHARGE, THE MAJORITY CONCLUDED THE SEVEN-YEAR SENTENCE FOR ASSAULT (THE MAXIMUM) SHOULD NOT BE REDUCED; A TWO-JUSTICE DISSENT ARGUED THE SENTENCE SHOULD BE REDUCED; A CONCURRENCE ARGUED THE APPEAL WAIVER WAS VALID (THIRD DEPT). ​

The Third Department, over a two-justice dissent and a concurrence, determined (1) the waiver of appeal was invalid, and (2) the sentence was not harsh and excessive. The dissenters argued defendant exhibited signs of mental illness and the traffic accident which was the basis of the assault charge was a suicide attempt, warranting a lesser […]

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DEFENDANTS’ EXPERTS’ CLAIMS THAT DEFENDANTS PROVIDED PROPER CARE AND ADVICE IN THIS MEDICAL MALPRACTICE ACTION WERE BELIED BY THE MEDICAL RECORDS AS EXPLAINED BY PLAINTIFF’S EXPERTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s experts in this medical malpractice action raised questions of fact about the negligence of each defendant. The decision is fact-specific and far too detailed to fairly summarize, but it provides insight into when expert affidavits are deemed sufficiently substantive to raise questions of fact: … [W]hen viewed […]

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ALTHOUGH PETITIONER’S USING HIS CELL PHONE WHILE ON DUTY TO SEND EXPLICIT MESSAGES VIOLATED THE EMPLOYEE’S MANUAL AND WARRANTED PUNISHMENT, TERMINATION WAS TOO SEVERE A PENALTY (THIRD DEPT).

The Third Department, modifying Supreme Court, over a dissent, determined that petitioner, a civil service employee, was properly found to have violated the Employee’s Manual by using his cell phone while on duty to send explicit messages. However, termination was deemed too severe a penalty and the matter was remitted. The dissent argued termination was proper: […]

PETITIONER SEX OFFENDER’S ABSCONDING FROM SUPERVISION IS A NON-TECHNICAL VIOLATION OF PAROLE AUTHORIZING REINCARCERATION FOR 30 MONTHS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner committed a non-technical violation of his parole (absconding from supervision) for which he could be incarcerated for 30 months. Supreme Court had determined petitioner had committed a technical violation for which he could be incarcerated for only 15 days: … [P]etitioner was released to postrelease supervision on August […]

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UNDER THE “AGE 29 LAW” MEDICAL-INSURANCE COVERAGE FOR PLAINTIFF’S CHILD WAS AVAILABLE THROUGH PLAINTIFF’S EMPLOYER’S PLAN UNTIL THE CHILD TURNED 29; THEREFORE THE STIPULATED ORDER IN THE DIVORCE PROCEEDING REQUIRING PLAINTIFF TO COVER THE CHILD UNDER THE PLAN FOR AS LONG AS THE LAW ALLOWS REQUIRED COVERAGE TO AGE 29; THE ARGUMENT THAT THE PARTIES CONTEMPLATED A CUT-OFF AT AGE 26 PURSUANT TO THE AFFORDABLE CARE ACT WAS REJECTED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the provisions of a stipulated order in a divorce proceeding (section 6.3)  providing that plaintiff would pay for medical insurance for a child (T.D.) for as long as coverage was available under the employer’s family plan were unambiguous and must be […]

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MAILING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE IS A VIOLATION OF RPAPL 1304 REQUIRING DENIAL OF THE BANK’S SUMMARY JUDGMENT MOTION (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. The bank mailed the notice of foreclosure to both borrowers in the same envelope, a violation of RPAPL 1304: … [T]he defendants are both borrowers for purposes of RPAPL 1304 and, thus, were […]

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CAVEAT EMPTOR (BUYER BEWARE) DOES NOT APPLY TO JUDICIAL FORECLOSURE SALES; HERE THE BANK DID NOT DISCLOSE THE EXISTENCE OF A SENIOR MORTGAGE; SALE SET ASIDE AND DOWN PAYMENT RETURNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure judicial sale should have been set aside because plaintiff bank failed to disclose the existence of a senior mortgage: “The rule that a buyer must protect himself [or herself] against undisclosed defects does not apply in all strictness to a purchaser at a judicial sale” … […]

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