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BUSINESS RECORDS SUBMITTED BY A PERSON WHO DOES NOT ALLEGE PERSONAL KNOWLEDGE OF THE PARTY’S RECORD-KEEPING PRACTICES AND PROCEDURES CANNOT BE RELIED UPON BY THE REFEREE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because relied-upon business records were not incorporated into an affidavit from someone with personal knowledge of the plaintiff’s record-keeping practices and procedures: … [T]he supplemental business records were not identified by [the affiant] “or otherwise incorporated […]

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DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this ladder-fall case. Plaintiff testified the unsecured ladder moved and he fell, which made out a prima facie case under Labor Law 240(1). Defendants attempted to raise a question of fact by submitting a statement plaintiff allegedly made to his foreman […]

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FAILURE TO COMPLY WITH THE SERVICE-OF-PROCESS REQUIREMENTS IN CPLR 308 AND 311 ARE JURISDICTIONAL DEFECTS, NOT “TECHNICAL” DEFECTS WHICH CAN BE OVERLOOKED PURSUANT TO CPLR 2001 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the incarcerated plaintiff’s failure to comply with the service of process requirements in CPLR 308(2) and 311 were jurisdictional defects which could not be overlooked by the judge pursuant to CPLR 2001. CPLR 2001, which allows a court to cure a “technical” defect in effecting service, presupposes the […]

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PLAINTIFFS REQUESTED GENERAL LIABILITY INSURANCE WHICH WAS PROCURED BY THE BROKER; THE BROKER WAS NOT UNDER A DUTY TO ADVISE, GUIDE OR DIRECT PLAINTIFFS TO OBTAIN ADDITIONAL COVERAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the defendant insurance broker breached its duty to procure additional insurance for the plaintiffs. Defendant proved plaintiffs requested general liability insurance which was procured: “As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a […]

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COUNTY COURT DECIDED TO ANONYMIZE POTENTIAL AND EMPANELED JURORS IN THIS MURDER TRIAL; THE MAJORITY CONCLUDED THE ANONYMIZED JURY DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR AND DID NOT WARRANT INTERVENTION IN THE INTEREST OF JUSTICE; THE TWO-JUSTICE DISSENT ARGUED THE EFFECT OF THE ANONYMIZED JURY ON THE PRESUMPTION OF INNOCENCE WARRANTED REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court’s “unsupported decision to anonymize potential and empaneled jurors” was not a mode of proceedings error and did not require reversal in the interest of justice: From the dissent: Considering the significance of the jury’s determination that defendant acted with the intent to kill rather than […]

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A PLAINTIFF’S STIPULATED SETTLEMENT WITH THE INSURED ACCOMPANIED BY A COVENANT NOT TO EXECUTE THE JUDGMENT AND AN ASSIGNMENT OF THE INSURED’S CLAIMS AGAINST THE INSURER IS NOT A “RELEASE;” THE INSURER STILL HAS A DUTY TO INDEMNIFY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant insurer had a duty to indemnify plaintiffs under a policy issued to a bar sued by plaintiffs for using plaintiffs’ images without their consent. Plaintiffs had entered a settlement agreement with the bar which included a consent judgment in […]

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THIS BREACH OF CONTRACT ACTION WAS BASED UPON A LEASE ENTERED BY A LIMITED LIABILITY COMPANY THE ASSETS OF WHICH WERE PURCHASED BY THE TWO DEFENDANT LIMITED LIABILTY COMPANIES; THE MAJORITY CONCLUDED THE COMPLAINT STATED A CAUSE OF ACTION UNDER THE THEORY THAT THE DEFENDANTS CONSTITUTED A “MERE CONTINUATION” OF THE ORIGINAL LESSEE’S BUSINESS; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the breach of contract (commercial lease) cause of action against defendant limited liability companies which had purchased the assets of the original lessee (another limited liability company) should not have been dismissed. The majority concluded the complaint stated a cause of action under the […]

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HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Even though plaintiff had failed to file a note of issue by a court-ordered deadline, no CPLR 3216 ninety-day notice had been served and there had been no order directing dismissal of the complaint. […]

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HERE THE VICTIMLESS CRIME DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WITHIN THE MEANING OF THE “RAISE THE AGE” LEGISLATION; THE PEOPLE’S MOTION TO PREVENT THE REMOVAL OF THE ADOLESCENT OFFENDER’S CASE FROM THE YOUTH PART OF SUPREME COURT TO FAMILY COURT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a comprehensive opinion by Justice Chambers, determined the People’s motion to prevent the removal of this criminal action against a 16-year-old from the Youth Part of Supreme Court to Family Court should not have been granted. The opinion focuses on the meaning of “extraordinary circumstances” in the controlling […]

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A FOREIGN DEFAULT JUDGMENT MAY BE ACCORDED FULL FAITH AND CREDIT IN NEW YORK BY A PLENARY ACTION OR A MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT; THERE IS NO NEED FOR PERSONAL JURISDICTION OVER THE DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Braithwaite Nelson, determined New York need not have personal jurisdiction over a defendant to have a North Carolina money judgment recognized in New York. After obtaining a default judgment in North Carolina, the plaintiff moved for summary judgment in lieu of complaint pursuant […]

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