The First Department, reversing Supreme Court, noted that a pre-joinder motion for summary judgment must be denied: The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). While CPLR 3211(c) permits the court, on notice to […]
The First Department, reversing Supreme Court, determined defendant should not have been awarded summary judgment on the liquidated damages counterclaim because defendant had withheld payment on the contract as an offset to the liquidated damages: Supreme Court should have denied summary judgment in defendant’s favor on the liquidated damages counterclaim. To be sure, the liquidated […]
The First Department determined Supreme Court properly denied plaintiff’s motion for summary judgment in this scaffold-fall case. Defendants raised a question of fact with evidence plaintiff was instructed to use guard rails on the scaffold but did not: … [T]hrough the testimony that plaintiff declined to use guardrails even though he was instructed to do […]
The Second Department, reversing Supreme Court, determined the defendant fitness center’s motion for summary judgment in this treadmill-injury case should not have been granted. Plaintiff alleged the treadmill accelerated suddenly. Plaintiff’s deposition was submitted by the defendant in support of its motion. Plaintiff testified she had complained about the treadmill-acceleration several days prior to her […]
The Second Department, reversing Supreme Court, determined defendant had raised a question of fact whether the bank had standing to foreclosure by producing a note that was different from the note submitted by the bank to demonstrate standing: … [T]he defendant raised a triable issue of fact as to whether the plaintiff had produced the […]
The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate defendant’s default and did not demonstrate compliance with the notice provisions of RPAPL 1304: … [I]n attempting to establish the defendant’s default in payment, the plaintiff relied on the affidavit of Jessica Fernandez, an assistant vice president of Bayview, […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion for a mistrial in this medical malpractice action should have been granted. The trial judge should not have precluded plaintiff’s expert’s testimony on the ground the scope of the testimony exceeded the CPLR 3101 (d) disclosure: Because portions of the expert’s testimony purportedly fell outside the […]
The Second Department, reversing Supreme Court, determined the town code provision which required a property inspection before issuance of a rental permit is not unconstitutional. Although the provision would be unconstitutional if an inspection by the town building inspector was required (a mandatory warrantless search), the provision also allows the landlord to have the property […]
The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304: … [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the […]
The Second Department, reversing Supreme Court, determined the proof surrounding the mailing of the RPAPL 1304 notice was insufficient: … “[T]he plaintiff failed to provide evidence of the actual mailing, ‘or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge […]
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