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A BREACH OF CONTRACT ACTION IS NOT PROPERLY CONVERTED TO AN ARTICLE 78 PROCEEDING; HERE THE PHYSICIAN SUED THE HOSPITAL FOR FAILING TO HONOR A CONTRACTUAL COMMITMENT TO ADMIT PLAINTIFF TO A RESIDENCY PROGRAM; THE PHYSICIAN’S ACTION WAS PRECLUDED FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of contract action should not have been converted to an Article 78 and the action was precluded by plaintiff-physician’s failure to exhaust the administrative remedies under the Public Health Law. Plaintiff was matched to a residency program at defendant hospital and the hospital was contractually bound […]

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IN THIS SLIP AND FALL ACTION AGAINST THE PORT AUTHORITY, THE APPLICABLE STATUTE PROVIDES THAT THE NOTICE OF CLAIM MUST BE SERVED AT LEAST 60 DAYS BEFORE THE COMMENCEMENT OF THE ACTION (NOT 60 DAYS AFTER THE ACCRUAL OF THE ACTION); THEREFORE THE NOTICE OF CLAIM WAS TIMELY SERVED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Maltese, determined the notice of claim in this slip and fall action against the Port Authority was timely because it was served at least 60 days before the commencement of the action. The statute of limitations for the commencement of the action had been […]

WHEN A COURT DECIDES AN ACTION BROUGHT AS A SPECIAL PROCEEDING SHOULD HAVE BEEN BROUGHT AS A PLENARY ACTION, THE ACTION SHOULD NOT BE DISMISSED BECAUSE IT WAS BROUGHT IN THE WRONG FORM; THE PETITION SOULD BE DEEMED A COMPLAINT, NOT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the special proceeding should have been converted to a plenary action, not dismissed. Once converted the petition is deemed a complaint, not a motion for summary judgment: Supreme Court should have converted the special proceeding into a plenary action rather than dismissing the petition, as CPLR 103(c) “prohibits […]

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THE ALLEGATIONS IN THE VERIFIED COMPLAINT IN THIS SLIP AND FALL CASE WERE SUFFICIENT TO SUPPORT PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT; THE DEFENDANT’S FAILURE TO ANSWER IS DEEMED TO BE AN ADMISSION TO THE ALLEGATIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment based upon the allegations in the verified complaint should have been granted: A party seeking a default judgment must submit proof of service of the summons and the complaint and “proof of the facts constituting the claim, the default and the amount […]

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THE IMPLEMENTATION OF FEES FOR CIVIL SERVICE EXAMS IS NOT A CONDITION OF EMPLOYMENT SUBJECT TO NEGOTIATION UNDER THE TAYLOR LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the appellate division and the NYS Public Employees Relations Board (PERB), determined the implementation of application fees for promotional and transitional civil service exams.by the Department of Civil Service (DCS) was not a condition of employment subject to negotiation under the Taylor Law: […]

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THE INCLUSION OF ADDITIONAL INFORMATION IN THE ENVELOPE CONTAINING THE RPAPL 1304 90-DAY FORECLOSURE NOTICE DOES NOT VIOLATE RPAPL 1304 AND IS NOT A PROPER BASIS FOR AWARDING SUMMARY JUDGMENT TO DEFENDANT IN A FORECLOSURE ACTION (CT APP) ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined the inclusion of additional information in the envelope with the 90-day foreclosure notice required by RPAPL 1304 does not violate the statute and therefore is not a basis for summary judgment in favor of a defendant in a foreclosure […]

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THE COUNTY HAD IN REM JURISDICTION IN THIS TAX FORECLOSURE PROCEEDING AND MADE ADEQUATE ATTEMPTS TO NOTIFY THE NECESSARY PARTIES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, affirming the appellate division, determined the county had in rem jurisdiction in this tax foreclosure proceeding and the county’s attempts to notify all parties of the tax foreclosure proceedings were sufficient: Two fundamental legal principles govern our decision in this appeal. First, a tax […]

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NEW YORK HAS LONG-ARM JURISDICTION OVER THE MICHIGAN MANUFACTURER OF UNMANNED AERIAL VEHICLES (UAV’S) PURCHASED BY SUNY STONY BROOK FOR USE IN MADAGASCAR IN THIS BREACH OF CONTRACT ACTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissenting opinion, reversing the appellate division, determined New York had long-arm jurisdiction over a Michigan manufacturer of unmanned aerial vehicles (UAV’s) purchased by SUNY Stony Brook for transporting medical supplies to remote areas of Madagascar. The two UAV’s purchased by SUNY Stony […]

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THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal: At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the […]

THE MAJORITY IN THIS DOG-BITE CASE DETERMINED DEFENDANT DID NOT DEMONSTRATE A LACK OF KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES; TWO DISSENTERS ARGUED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE THE DOG HAD NEVER EXHIBITED VICIOUS BEHAVIOR BEFORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion for summary judgment in this dog-bite case should not have been granted. The dissenters argued defendant demonstrated she did not have knowledge of the dog’s vicious propensities: … [D]efendant submitted plaintiff’s deposition testimony that, while plaintiff was at defendant’s door, the dog […]

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