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WHERE AN ACTION HAS BEEN MARKED OFF AS “INACTIVE,” THERE IS NO NOTE OF ISSUE, THERE HAS BEEN NO 90-DAY DEMAND AND THERE IS NO ORDER DISMISSING THE COMPLAINT, RESTORATION TO THE CALENDAR AT ANY TIME IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to retore the action to the calendar after it was marked off because plaintiff failed to appear should have been granted. A note of issue had not been filed, there had been no 90-day notice pursuant to CPLR 3216, and there was no order directing dismissal […]

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THE CONTRACT BETWEEN DEFENDANT AIRWAY CLEANERS AND DEFENDANT AMERICAN AIRLINES IN THIS AIRPORT SLIP AND FALL CASE DID NOT ENTIRELY DISPLACE AMERICAN AIRLINES’ DUTY TO KEEP THE BATHROOM SAFE; THEREFORE THE CONTRACT COULD NOT SERVE AS THE BASIS FOR AIRWAY CLEANERS’ LIABILTY TO PLAINTIFF UNDER ESPINAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Airway Cleaners’ contract with American Airlines did not entirely displace defendant American Airlines’ duty to maintain the bathroom where plaintiff slipped and fell. Therefore the contract between Airway Cleaners and American Airlines could not serve as the basis for Airway Cleaners’ liability to third parties (plaintiff) under […]

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; THAT PLAINTIFF PLED GUILTY TO A TRAFFIC OFFENSE DOES NOT PROVE SHE WAS NEGLIGENT; PLAINTIFF ALLEGED SHE PLED GUILTY BECAUSE SHE DID NOT HAVE THE MONEY TO DRIVE FROM HER HOME FOR COURT APPEARANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bus-car traffic accident should not have been granted. The defendants submitted conflicting evidence about how the accident happened. The fact that plaintiff pled guilty to a traffic offense does not necessarily prove she was negligent. Plaintiff alleged she pled guilty to […]

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THERE WAS NO EVIDENCE DEFENDANT WAS AWARE OF THE SPONTANEOUS USE OF A KNIFE BY THE PERPETRATOR IN THIS MURDER CASE; THE EVIDENCE DEFENDANT SHARED THE PERPETRATOR’S INTENT, THEREFORE, WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction for murder under an accomplice theory, determined the evidence defendant shared the intent of Mack, who stabbed the victim, was insufficient: To hold a person responsible for the criminal conduct of another, the People must demonstrate that “when, acting with the mental culpability required for the commission thereof, he […]

IF THE EVIDENCE PRESENTED IN A MOTION TO RENEW WAS AVAILABLE AT THE TIME OF THE ORIGINAL MOTION, THE FAILURE TO INCLUDE IT MUST BE EXPLAINED; HERE THE FAILURE WAS NOT EXPLAINED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence presented in plaintiff’s motion to renew was available at the time of the initial motion. Therefore plaintiff’s failure to explain the failure to include it required denial of the renewal motion: Plaintiff moved under CPLR 2221(e) for leave to renew defendants’ motion to vacate the default […]

THE FACT THAT PLAINTIFF COULD NOT EXPLAIN HOW THE IMPROPERLY SECURED BEAM WHICH STRUCK HIM FELL DID NOT PRECLUDE PLAINTIFF FROM BEING AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. A beam which was not properly secured fell on plaintiff. The fact that plaintiff could not explain how the beam fell did not preclude the award of summary judgment: Plaintiff’s testimony that a beam fell on […]

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THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant should have been present for the sidebar conference about the justification defense in this attempted murder by stabbing case. Defendant claimed he had a heart condition triggered by stress which causes his heart to race until he passes out. Defense […]

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ALTHOUGH THE POLICE HAD VISITED PLAINTIFF SEVERAL TIMES IN RESPONSE TO HER CALLS ABOUT HER EX-BOYFRIEND’S VIOLATIONS OF THE ORDER OF PROTECTION AND THE POLICE HAD SPOKEN TO HER EX-BOYFRIEND (WHO LIVED DIRECTLY ABOVE HER), THE MAJORITY CONCLUDED THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE POLICE SUCH THAT PLAINTIFF COULD HAVE JUSTIFIABLY RELIED ON THE POLICE FOR PROTECTION; HER EX-BOYFRIEND SUBSEQUENTLY THREW HER OUT OF A SECOND-FLOOR WINDOW (CT APP).

The Court of Appeals, over two extensive dissenting opinions, determined the fact plaintiff’s ex-boyfriend was subject to an order of protection at the time he attacked her and threw her out of a second-floor window did not create a special relationship with the police such that the municipality would be liable for failing to protect […]

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PLAINTIFF’S DECEDENT WAS TORTURED AND MURDERED IN HER HOME BY HER MOTHER AND BROTHER; ALTHOUGH COUNTY AUTHORITIES HAD BEEN CALLED TO INVESTIGATE ALLEGATIONS PLAINTIFF’S DECEDENT HAD SUFFERED INJURIES AND SHERIFFS HAD RETURNED PLAINTIFF’S DECEDENT TO HER HOME AFTER SHE RAN AWAY, THERE WAS NO SPECIAL RELATIONSHIP WITH THE COUNTY SUCH THAT PLAINTIFF’S DECEDENT JUSTIFIABLY RELIED ON INTERVENTION BY COUNTY AUTHORITIES (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined plaintiff did not raise a question of fact about the existence of a special relationship between plaintiff’s decedent, Laura, and the county such that the county could be liable for the torture and murder of Laura by her […]

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PURSUANT TO UCC 9-406 A LENDER’S SECURITY INTEREST IN A DEBTOR’S ACCOUNTS-RECEIVABLES IS AN ASSIGNMENT SUCH THAT A THIRD-PARTY WHICH HAS NOTICE OF THE ASSIGNMENT MUST MAKE ANY PAYMENTS OWED TO THE DEBTOR DIRECTLY TO THE LENDER (CT APP). ​

​The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Wilson, determined that UCC 9-406 allowed the lender to collect the accounts-receivables owed to the debtor by third-parties. The lender (Worthy) had a security interest in payments made by a third-party (New Style) to the debtor (Checkmate) after the New Style […]

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