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IN THIS EJECTMENT ACTION, DEFENDANT-TENANT’S “FAILURE TO STATE A CAUSE OF ACTION,” “WAIVER,” “CONSTRUCTIVE EVICTION,” “BREACH OF COVENANT OF QUIET ENJOYMENT,” “IMPROPER NOTICE OF DEFAULT,” AND “TRESPASS” AFFIRMATIVE DEFENSES SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined several affirmative defenses in this ejectment action should not have been dismissed. Plaintiff landlord sought to eject defendant tenant from a parking lot for nonpayment of rent. Defendant alleged, and plaintiff acknowledged, plaintiff had rented certain parking spaces to a third party. The Second Department held: (1) […]

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ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the record did not support the finding that claimant, a school custodian, contracted COVID-19 from workplace exposure. The decision is fact-specific. Claimant had little contact with students during his work hours and there were other possible sources of infection: We acknowledge that “the contraction of COVID-19 […]

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THE DIVISION OF CRIMINAL JUSTICE SERVICES’ (DCJS’S) DETERMINATION THAT PETITIONER POLICE OFFICER WAS TERMINATED “FOR CAUSE” WAS CONTRADICTED BY THE FACTS; THE DETERMINATION WAS REVERSED AS “ARBITRARY AND CAPRICIOUS” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, held the Division of Criminal Justice Services’ (DCJS’s) determination that petitioner police officer was terminated “for cause,” in the face of a consent order and evidence demonstrating petitioner resigned, was arbitrary and capricious.  The opinion is fact-specific and cannot be fairly summarized […]

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PETITIONER, A TRANSGENDER INDIVIDUAL, WAS ENTITLED, FOR PERSONAL SAFETY REASONS, TO THE SEALING OF THE RECORD OF HER NAME-CHANGE PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a transgender individual, was entitled, for her personal safety, to the sealing of the record of her name-change proceeding: We analyzed Civil Rights Law § 64-a in Matter of Cody VV. (Brandi VV.) (226 AD3d 24 [3d Dept 2024]). There, Supreme Court — the same justice — denied an […]

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THE WAS NO PROOF DEFENDANT VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; ORDER REVERSED AND MATTER REMITTED FOR A NEW HEARING (SECOND DEPT).

The Second Department, reversing the SORA risk-level determination, held that the record did not establish that defendant waived his right to be present at the risk-level hearing: “A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing” (… see Correction Law § 168-n[3]). “To establish […]

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THE REFEREE’S REPORT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED; PROOF OF DEFENDANT’S DEFAULT WAS BASED UPON BUSINESS RECORDS FOR WHICH NO FOUNDATION WAS LAID; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the report was based upon business records which were not produced. In addition defendant’s default was based upon records for which no foundation was laid: “The report of a referee should be confirmed whenever the […]

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THE PROCESS SERVER KNEW WHERE DEFENDANT LIVED AND WORKED AND MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO SERVE DEFENDANT AT HOME; WITHOUT MAKING ANY ATTEMPT TO SERVE DEFENDANT AT WORK, THE PROCESS SERVER RESORTED TO “NAIL AND MAIL;” THE PROCESS SERVER DID NOT DEMONTRATE “DUE DILIGENCE;” THE COURT NEVER ACQUIRED PERSONAL JURISDICTION OVER DEFENDANT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the process server did not demonstrate due diligence in attempting to serve defendant, therefore the court did not acquire personal jurisdiction: “Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR […]

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CONCLUSORY AND SPECULATIVE ALLEGATIONS WILL NOT SUPPORT PIERCING THE CORPORATE VEIL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion to amend the complaint to “pierce the corporate veil” should not have been granted: The allegations in the proposed amended complaint were “conclusory” rather than fact-based: “‘Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, “pierce the corporate veil,” whenever […]

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DEFENDANT DID NOT ADMIT HE INTENDED TO COMMIT A CRIME IN THE BUILDING HE ENTERED AND REMAINED UNLAWFULLY; THEREFORE THE PLEA ALLOCUTION DID NOT ESTABLISH THE ELEMENTS OF ATTEMPTED BURGLARY; DEFENDANT’S VIOLATION OF A STAY-AWAY ORDER IS NOT ENOUGH; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s plea to attempted burglary, determined defendant’s plea allocution negated an essential element of the offense, thereby calling into question the voluntariness of the plea: Burglary requires the intent to commit a crime while unlawfully entering or remaining in a building. Defendant did not admit he intended to commit a crime […]

PLAINTIFF FELL WHEN A TEMPORARY SCAFFOLD HE HAD BUILT COLLAPSED; DEFENDANTS ARGUED PLAINTIFF DID NOT FOLLOW INSTRUCTIONS ON HOW TO PROPERLY BUILD THE SCAFFOLD; THE RECALCITRANT-WORKER DEFENSE DID NOT APPLY BECAUSE PLAINTIFF WAS NEVER PROVIDED WITH AN ADEQUATE SAFETY DEVICE AND PLAINTIFF’S ALLEGED COMPARATIVE NEGLIGENCE WILL NOT DEFEAT A LABOR LAW 240(1) SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s summary judgment motion on the Labor Law 240(1) cause of action should have been granted. Defendant raised the recalcitrant worker defense which the First Department found inapplicable. Plaintiff was standing on a scaffold when it collapsed. Defendant argued plaintiff disregarded instructions on how to construct the scaffold, […]

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