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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304: … [P]laintiff failed to submit an affidavit of service or proof of mailing by the United States Postal Service evidencing that it properly served the defendants. Instead, the plaintiff relied on […]

GRANDMOTHER’S PETITION TO MODIFY THE VISITATION ARRANGEMENT SHOULD HAVE BEEN GRANTED; MOTHER’S VIOLATION OF THE ORDER ALLOWING VISITATION BY GRANDMOTHER CONSTITUTED A CHANGE IN CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the mother’s refusal to allow visitation with the child by the paternal grandmother, in violation of a court order, constituted and change in circumstances warranting the granting of grandmother’s petition to modify the visitation arrangement: … [T]he paternal grandmother filed a petition to modify the order … , […]

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THE TOWN BOARD OF APPEALS’ FAILURE TO ISSUE A DECISION ON PETITIONER’S APPLICATION FOR A SPECIAL EXCEPTION PERMIT AND AN AREA VARIANCE WITHIN THE 62 DAYS PRESCRIBED BY THE TOWN LAW WAS NOT A DENIAL BY DEFAULT; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION AND THE MATTER WAS NOT RIPE FOR REVIEW; SUPREME COURT SHOULD NOT HAVE ANNULLED THE “DEFAULT DENIAL” AND ORDERED THE TOWN TO ISSUE THE PERMIT AND VARIANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the town Board of Appeals’ failure to issue a decision on petitioner’s application for a special exception permit and an area variance within the 62 days prescribed by the Town Law was not a denial of the application by default; (2) Supreme Court should not have treated […]

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DEFENDANT HOMEOWNER DID NOT HAVE THE OPPORTUNITY TO CONTROL THE CONDUCT OF HER ESTRANGED HUSBAND WHO ALLEGEDLY ASSAULTED PLAINTIFF IN DEFENDANT’S HOME; THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES WAS THE ESTRANGED HUSBAND’S ACT; DEFENDANT HOMEOWNER’S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant homeowner’s (Portelli’s) motion to dismiss the negligence action against her based upon an assault upon plaintiff by Portelli’s estranged husband at Portelli’s home should have been dismissed: The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as the result of an assault […]

IN A PARTIAL CONCURRENCE/PARTIAL DISSENT TWO JUSTICES WOULD HAVE REDUCED DEFENDANT’S SENTENCE TO TIME SERVED IN THE INTEREST OF JUSTICE BECAUSE OF THE EVIDENCE THAT DEFENDANT’S LIFE-EXPECTANCY AFTER REMOVAL OF A BRAIN TUMOR IS TWO TO THREE YEARS, THE DEFENDANT’S AGE AT THE TIME OF THE OFFENSE (18), AND THE DEFENDANT’S ABSENCE FROM THE ROOM WHERE THE VICTIM WAS STABBED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly declined to adjudicate defendant a youthful offender and properly denied defendant’s motion to vacate his conviction on the ground he was suffering from the effects of an undiagnosed brain tumor at the time he pled guilty. The dissenters would have reduced defendant’s sentence because […]

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THE BANK DID NOT PRESENT EVIDENCE IN ADMISSIBLE FORM TO SUPPORT ITS CLAIM THAT DEFENDANT ACKNOWLEDGED THE MORTGAGE DEBT, STARTING THE STATUTE OF LIMITATIONS ANEW; DEFENDANT’S MOTION TO DISMISS THE FORECLOSURE ACTION AS UNTIMELY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was commenced after the statute of limitations had run. The bank claimed the defendant acknowledged the debt in a loan modification agreement, starting the statute of limitations anew. But the bank did not present evidence of the agreement in admissible form: The plaintiff argues that […]

PLAINTIFF FELL THROUGH PLANKING WHICH DID NOT ADEQUATELY PROTECT A SHAFT OPENING; THE FACT THAT PLAINTIFF’S FOREMAN INSTRUCTED PLAINTIFF NOT TO ENTER THE SHAFT SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO SUMMARY JUDGMENT ON A LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. The fact that plaintiff’s employer instructed him not to enter the shaft where plaintiff fell to the floor below spoke to comparative negligence which is not a bar to summary […]

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD HAVE BEEN GRANTED: ALTHOUGH A PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT, THE ISSUE CAN BE DECIDED AT THE SUMMARY JUDGMENT STAGE WHERE PLAINTIFF MOVES FOR SUMMARY JUDGMENT DISMISSING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE; PLAINTIFF’S MOTION WAS NOT PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) plaintiff pedestrian was entitled to summary judgment in this pedestrian-vehicle accident case; and (2)  plaintiff’s motion for summary judgment was not premature, The court noted that, although plaintiff’s comparative negligence is not a bar to summary judgment, the issue can still be considered at the summary judgment […]

FAILURE TO INFORM THE DEFENDANT OF THE SPECIFIC OR MAXIMUM PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVOLUNTARY (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not voluntary because defendant was not informed of the specific or maximum period of postrelease supervision to which defendant would be sentenced: “To meet due process requirements, a defendant must be aware of the postrelease supervision component of that sentence in order to knowingly, […]

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THE EVIDENCE THE COMPLAINANT SUFFERED “SERIOUS PHYSICAL INJURY” FROM MULTIPLE STAB WOUNDS WAS LEGALLY INSUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department reduced defendant’s convictions to attempted gang assault first, attempted assault first, attempted robbery first and attempted assault second because the proof the complainant suffered “serious physical injury” was lacking: … [W]e find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed […]

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