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DEFENDANT PROPERTY OWNER FAILED TO DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER OR THAT PLAINTIFF WAS DEFENDANT’S SPECIAL EMPLOYEE; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS NOT PRECLUDED BY THE EXCLUSIVE REMEDY ASPECT OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Zorn Realties, the owner of the property, did not demonstrate it was the alter ego of plaintiff’s employer, Zorn Poultry Farm, and did not demonstrate plaintiff was a special employee of Zorn Realties. Therefore, the negligence action stemming from plaintiff’s fall through a chute or a hole […]

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PLAINTIFF’S CAUSES OF ACTION FOR CONSTRUCTIVE DISCHARGE AND HOSTILE WORK ENVIRONMENT SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff’s causes of action for constructive discharge and hostile work environment should have been dismissed. The court laid out the criteria for those causes of action: “An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so […]

HERE THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S FRAUDULENT CONVEYANCE ACTION; THE CAUSE OF ACTION COULD HAVE BEEN RAISED IN THE PRIOR ACTION WHICH WAS DISMISSED (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the fraudulent conveyance cause of action was precluded by the doctrine of res judicata. Although the fraudulent conveyance claim was not alleged in the prior action, which was dismissed, it could have been raised in the prior action: In 2016, plaintiff sued NBC, NBF, and PIM, alleging — […]

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PLAINTIFFS STATED CAUSES OF ACTION FOR VIOLATIONS OF THE SECURITIES ACT BASED UPON ALLEGEDLY MISLEADING INFORMATION IN THE SECONDARY PUBLIC OFFERING (SPO) (FIRST DEPT). ​

The First Department determined plaintiffs, who purchased securities based upon allegedly inaccurate information in defendants’ secondary public offering (SPO), stated causes of action for violations of the Securities Act. The court noted that the heightened pleading requirements of CPLR 3015(b) do not apply to the Securities Act violations alleged in the complaint: … [C]laims for […]

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THE LLC’S FAILURE TO CHANGE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE IS NOT A SUFFICIENT EXCUSE FOR A DEFAULT; PARTIES TO WHICH THE SUBJECT PROPERTY WAS TRANSFERRED AFTER THE LIS PENDENS WAS FILED ARE NOT NECESSARY PARTIES BECAUSE THEY ARE BOUND BY THE RESULT IN THIS ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined (1) defendant E&A did not show a reasonable excuse for its default, and (2) the parties to which the property was transferred after the lis pendens was filed were not necessary parties because they are bound by the result of the instant action: E&A asserted that it did […]

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IN THIS PRODUCTS LIABILITY ACTION WHERE A ROUTER SEVERED PLAINTIFF’S THUMB, THE FAILURE-TO-WARN CAUSE OF ACTION BASED ON THE MANUAL SHOULD HAVE BEEN DISMISSED BECAUSE PLANTIFF NEVER READ IT; THE GENERALIZED FAILURE-TO-WARN CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; DISAGREEING WITH THE SECOND DEPARTMENT, THE DESIGN-DEFECT CAUSE OF ACTION BASED ON THE LACK OF AN INTERLOCK DEVICE PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, modifying Supreme Court in this products liability case where plaintiff severed his thumb using a router, determined: (1) the failure-to-warn cause of action based upon the product manual should have been dismissed because plaintiff testified he never read it; (2) the generalized failure-to-warn cause of cause properly survived summary judgment; and (3) […]

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SUPREME COURT PROPERLY REFUSED TO QUASH SUPBOENAS ISSUED BY THE OFFICE OF THE ATTORNEY GENERAL (OAG) TO THE TRUMP ORGANIZATION IN THE OAG’S FRAUD INVESTIGATION; THE FACT THAT THERE IS A RELATED CRIMINAL INVESTIGATION DOES NOT PRECLUDE CIVIL DISCOVERY (FIRST DEPT).

The First Department, in this civil investigation by the Office of Attorney General (OAG) into whether the respondent Trump Organization committed fraud in their financial practices and disclosure, Supreme Court properly refused to quash the OAG’s subpoenas seeking depositions and documents. The fact that there is also a criminal investigation does preclude civil discovery: The […]

PLAINTIFF FELL DOWN AN OPEN, UNGUARDED MANHOLE AS HE ATTEMPTED TO STEP OVER IT; PLAINTIFF’S ACTION WAS NOT THE SOLE PROXIMATE CAUSE OF THE FALL BECAUSE THERE WAS NO PROTECTIVE RAILING AROUND THE MANHOLE (FIRST DEPT). ​

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell into an unguarded, open manhole. Defendants argued plaintiff’s attempting to step over the manhole was the sole proximate cause of the fall. But the fact that the manhole was unguarded (another cause of the fall) […]

RARE SLIP AND FALL WON BY THE DEFENDANT AT SUMMARY JUDGMENT BY DEMONSTRATING A LACK OF CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE BOX WHICH ALLEGEDLY CAUSED PLAINTIFF’S FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it did not have constructive notice of the presence of a cardboard box over which plaintiff allegedly tripped and fell—a rare slip and fall case where a lack of constructive notice was successfully demonstrated at the summary judgment stage: Defendant sustained its initial burden of showing […]

A REJECTED PURCHASE OFFER WAS NOT ADMISSIBLE AT TRIAL TO PROVE THE FAIR MARKET VALUE OF THE MARITAL RESIDENCE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this divorce case, determined a purchase offer was not admissible to show the fair market value of the marital residence: Order … which … granted plaintiff’s motion to set a minimum net value for marital real property located in Southampton, New York, at $20 million for equitable […]

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