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PLAINTIFF ALLEGED DEFENDANT INSURER BREACHED THE INSURANCE CONTRACT BY FAILING TO PAY THE FULL AMOUNT OF THE COVERAGE; THAT ALLEGATION DOES NOT SUPPORT AN ADDITIONAL CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the cause of action for breach of the implied covenant of good faith and fair dealing duplicated the breach of contract cause of action and should have been dismissed. Plaintiff alleged defendant insurer failed to pay her the full amount of the supplemental uninsured motorist (SUM) coverage: In […]

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THE CASUALTY CLAUSE IN THE LEASE DID NOT APPLY TO EXCUSE DEFENDANT-TENANT’S NONPAYMENT OF RENT DURING THE COVID PANDEMIC; THE FORCE MAJEURE, FRUSTRATION OF PURPOSE AND UNCLEAN HANDS DOCTRINES ALSO DID NOT APPLY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined (1) the casualty clause in the lease did not excuse defendant’s failure to pay rent during the COVID pandemic, (2) the force majeure doctrine did not apply, (3) and the frustration-of-purpose and unclean-hands doctrines did not apply: … [W]e conclude that plaintiff established as a matter of law […]

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HERE THE FRAMING COMPANY HIRED BY THE GENERAL CONTRACTOR AND GIVEN SUPERVISORY CONTROL OVER PLAINTIFF’S WORK WAS LIABLE FOR PLAINTIFF’S INJURY AS A “STATUTORY AGENT” OF THE GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant South Ocean Framing was a statutory agent liable for plaintiff’s injury pursuant to  Labor Law 240(1). The general contractor hired South Ocean Framing, which in turn subcontracted the framing work to plaintiff’s employer. Plaintiff stepped on a beam which flipped out from under him and he fell […]

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STRICT COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not prove the RPAPL 1304 was properly mailed to the defendants: … [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied on copies of the RPAPL 1304 notices […]

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IN THIS FORECLOSURE ACTION, THE BANKRUPTCY STAY DID NOT TERMINATE WHEN DEFENDANT BOUGHT THE SUBJECT PROPERTY FROM THE BANKRUPTCY ESTATE; THE STAY TERMINATED LATER WHEN DEFENDANT RECEIVED A DISCHARGE FROM THE BANKRUPTCY COURT; THE FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, in a matter of first impression, determined the foreclosure action, which had been stayed when defendant twice filed for bankruptcy, was timely brought. If the stay ceased when defendant bought the subject property from the bankruptcy estate, the foreclosure would have been untimely. But the […]

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RE: A MOTION FOR TEMPORARY CUSTODY, IF ALLEGATIONS IN THE AFFIDAVITS ARE CONTROVERTED, A HEARING MUST BE HELD; TO BASE A TEMPORARY-CUSTODY RULING ON CONTROVERTED ALLEGATIONS IS AN ERROR OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined controverted allegations in the affidavits required a hearing on the motion for temporary residential custody of the child: … [W]hile temporary custody may generally “be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make […]

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THE IDENTITY OF PLAINTIFF’S EMPLOYER WAS NOT A DISPUTED ISSUE IN THE WORKERS’ COMPENSATION PROCEEDING; THEREFORE DEFENDANTS WERE NOT COLLATERALLY ESTOPPED FROM CONTESTING THE IDENTITY OF PLAINTIFF’S EMPLOYER IN THIS RELATED NEGLIGENCE ACTION AND ARGUING PLAINTIFF’S EXCLUSIVE REMEDY IS WORKERS’ COMPENSATION; HOWEVER DEFENDANTS PRESENTED CONFLICTING EVIDENCE OF THE IDENTITY OF PLAINTIFF’S EMPLOYER AND THEREFORE WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the collateral estoppel doctrine preclude defendants from disputing the identity of plaintiff’s employer because the issue was not in dispute the Workers’ Compensation proceeding. Plaintiff was a matron on a school bus and was injured when the bus was involved in a collision. Plaintiff sued the bus driver (Bonhome) and the […]

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THE NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT IN AN ENVELOPE WHICH INCLUDED OTHER NOTICES, A VIOLATION OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank violated the “separate envelope” rule (RPAPL 1304) in that the foreclosure notice sent to defendant included notices in addition to the foreclosure notice: … [T]he plaintiff failed to establish, prima facie, that it complied with the “separate envelope” requirement of RPAPL 1304(2). “[I]nclusion of any material […]

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THE PROOF OF THE AMOUNT DUE PURSUANT TO THE MORTGAGE WAS NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was based on hearsay and should not have been confirmed: “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … […]

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THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Sourour’s) motion to set aside the verdict in the interest of justice in this medical malpractice action should have been granted. The evidence supported the jury’s finding that the failure to do diagnostic testing decreased the plaintiff’s chance of a better outcome. During the trial Sourour […]

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